Dubner v. Ambach

Mahoney, P. J.

(concurring). The majority concludes that it would be inappropriate to award petitioners incidental monetary relief in light of the additional proceedings necessary in this matter. While I agree that incidental monetary relief should not be granted to petitioners, I do so in the belief that we are without jurisdiction to make such an award. CPLR 7806 declares that incidental monetary relief may only be granted in an article 78 proceeding when the petitioner "might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity” (emphasis added). The language requiring a showing that the damages would lie if sought in a separate Supreme Court action against the same respondent was added (L 1962, ch 318, § 27) following a decision holding that the State had surrendered its sovereign immunity against the prosecution of incidental damage claims in mandamus proceedings (Matter of Karaffa v Simon, 29 Misc 2d 219, 220, revd on other grounds 14 AD2d 978; see 8 Weinstein-Korn-Miller, NY Civ Prac, par 7806.01). It, therefore, seems clear that the Legislature, in 1962, dispelled any notion that the State had consented to a limited waiver of its immunity in CPLR 7806 (see Siegel, New York Practice, § 570, p 801). Accordingly, the petitioners in the instant proceeding must resort to a suit in the Court of Claims if they are to recover money from the State based on the respondents’ failure to exercise their statutory powers.