Alice Barrett, Plaintiff, v. Arthur Levitt, as Comptroller of the State of New York, Defendant, 41 Misc. 2d 990

De Forest C. Pitt, J. This is a motion brought by the plaintiff for a

summary judgment in accordance with the provisions of

section 3213 of the Civil Practice Law and Rules. Plaintiff’s motion was met by a cross motion by the defendant, Arthur Levitt, as Comptroller of the State of New York, to dismiss plaintiff’s action. The factual situation as the same is pertinent to this motion is as follows: The State of New York appropriated certain parcels of land belonging to the plaintiff for highway purposes. Plaintiff prosecuted a claim in the Court of Claims and following-trial was awarded $5,000 damages. (Barrett v.

State of New York, 30 Misc 2d 977.) The Attorney-General then refused to file his approval of title and direction regarding the entering of judgment as required by rule 28 of the Court of Claims Rules, thereby allowing the plaintiff to enter judgment, unless plaintiff presented to him the releases of certain persons holding easements affecting the property. Plaintiff then moved in the Court of Claims to compel the entry of judgment. This motion was granted and judgment entered for the sum of $5,916.67.

An appeal was taken from the judgment and the Appellate Division, Third Department, unanimously affirmed the Court of Claims. (Barrett v. State of New York, 18 A D 2d 854.) A certificate of no further appeal has been filed by the State. The Comptroller, the defendant herein, presently refuses to make payment upon the judgment unless and until presented by the Attorney-G-eneral with a satisfactory abstract of title and certificate of search as to incumbrances, claiming he is prohibited from doing so by subdivision 6 of

section 20 of the Court of Claims Act and certain provisions of the State Finance Law. The plaintiff, making use of a new procedural device (CPLR 3213) asks that this court, (1) enter judgment against the defendant in his capacity as Comptroller of the State of New York, and (2) that it direct the defendant to pay to the plaintiff the amount of the judgment. It appears to this court that the plaintiff cannot by this motion be afforded the relief sought. In asking this court to enter a judgment against the State of New York he is asking that it do a useless thing.

The judgment so entered would be no more enforcible than the present judgment plaintiff has against the State. In asking this court to compel the payment of such judgment the plaintiff is seeking the classic relief of an

article 78 proceeding. The plaintiff meets this latter objection by pointing to the new rules of liberal construction and, upon urging that this court has jurisdiction of the subject matter, suggest that his motion may be considered in the nature of an

article 78 proceeding and the relief sought thereby obtained. Regardless of whether or not plaintiff’s moving papers can be so liberally construed, plaintiff on this argument, is then met with the provision of

section 506 (subd. [b], par. 2) of the Civil Practice Law and Rules requiring an

article 78 proceeding brought against the Comptroller of the State of New York be commenced in the Supreme Court of Albany County. Plaintiff’s motion must therefore be denied and defendant’s motion for dismissal granted.