## State of N ew York Su p reme Cou rt, A p p ellate Division Third J u dicial Dep artment

Decided and Entered: February 26, 2015 518360

________________________________ HOPE FOR YOUTH, INC., Individually and in its Capacity as a Member of Community Residence Insurance Savings Plan SI Trust, Appellant,

v MEMORANDUM AND ORDER

STATE OF NEW YORK, Respondent.

________________________________

Calendar Date: January 15, 2015

Before: Lahtinen, J.P., Garry, Devine and Clark, JJ.

__________

Wayne J. Schaefer, Smithtown, for appellant.

Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), for respondent.

__________

Lahtinen, J.P.

Appeal from an order of the Court of Claims (Ferreira, J.), entered April 1, 2013, which granted defendant's motion to dismiss the claim.

Claimant was a member of the Community Residence InsuranceSavings Plan (hereinafter CRISP), a workers' compensation selfinsured trust (see Workers' Compensation Law § 50 [3-a]) comprised primarily of nonprofit entities providing health and social services. In May 2010, the Workers' Compensation Board informed CRISP that it was underfunded. CRISP decided to stop-2- 518360

providing workers' compensation coverage for its members at theend of 2010, but it informed members that it would provide a runoff in which it continued to handle existing claims and meet Board requirements until all pending claims and assessments had been paid. The Board notified CRISP members in March 2011 of the need to maintain sufficient cash reserves or the Board would be required to take over administration of the trust with concomitant additional costs to members.

By June 2011, CRISP was more than $2 million short in assessment funds and the Board informed CRISP and its members that its assumption of administration of the trust was imminent. CRISP contends that, although a Board administrator indicated in mid-June 2011 that a one-month extension would likely be granted and CRISP raised more than the $2 million required by the Board by June 28, 2011, the Board nonetheless notified CRISP and its members on June 28, 2011 that it was assuming control as of August 1, 2011. The Board takeover of the trust cost claimant additional funds. Claimant brought this claim alleging, among other things, interference with property, conversion, interference with contract, and fraud and deceit. The Court of Claims granted defendant's motion to dismiss the claim upon the ground that it lacked subject matter jurisdiction. Claimant appeals.

We affirm. The limited jurisdiction of the Court of Claims does not include, among other things, a situation "where an administrative procedure is available and the claim, in essence, 'would require review of an administrative agency's determination'" (Chevron U.S.A. Inc. v State of New York, 86 AD3d 820, 820 [2011], quoting City of New York v State of New York, 46 AD3d 1168, 1169 [2007], lv denied 10 NY3d 705 [2008]; see Carver v State of New York, 79 AD3d 1393, 1394 [2010], lv denied 17 NY3d 707 [2011]). Generally, "an administrative agency's determination may be reviewed only in the context of a CPLR article 78 proceeding commenced in Supreme Court, and not in an action brought in the Court of Claims" (Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1144 [2009], lv denied 12 NY3d 712 [2009]; see Feuer v State of New York, 101 AD3d 1550, 1551 [2012]).-3- 518360

Here, the claim basically challenges the Board's action in assuming control of the trust. The Board's decision as to when and how to act under the statute, including when to assume control of a self-insured trust, implicates discretionary determinations by the Board (see Workers' Compensation Law § 50 [5] [f], [g]; 12 NYCRR 317.20 [c]; see generally Matter of Aides At Home, Inc. v State of N.Y. Workers' Compensation Bd., 76 AD3d 727, 728 [2010]). For claimant to succeed in its claim, it would have to convince the Court of Claims that the Board's action – in essence if not in actuality – should be annulled (see Guy v State of New York, 18 AD3d 936, 937 [2005]), and this is the type of analysis undertaken in a CPLR article 78 proceeding (see Matter of Aides At Home, Inc. v State of N.Y. Workers' Compensation Bd., 76 AD3d at 727). Such a result is inescapable regardless of how claimant characterized the claim and, accordingly, we agree with the Court of Claims that it lacked subject matter jurisdiction (see Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d at 1144; Guy v State of New York, 18 AD3d at 937).

Garry, Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court