VSF Coalition, Inc. v. Scoppetta

Appellate Division of the Supreme Court of New York

VSF Coalition, Inc. v. Scoppetta

13 A.D.3d 517, 786 N.Y.S.2d 575, 2004 N.Y. App. Div. LEXIS 15849

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 2004

StatusPublished

Cited by3 cases

This text of 13 A.D.3d 517 (VSF Coalition, Inc. v. Scoppetta) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

VSF Coalition, Inc. v. Scoppetta, 13 A.D.3d 517, 786 N.Y.S.2d 575, 2004 N.Y. App. Div. LEXIS 15849 (N.Y. Ct. App. 2004).

Pincite

Opinion

In an action, inter aha, in effect, to direct the defendant Eliot Spitzer, Attorney General of the State of New York, to compel the remaining defendants to comply with the Fension Impairment Clause of the New York State Constitution (NY Const, art Y § 7), the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated February 11, 2004, which granted the motion of the defendant Eliot Spitzer, Attorney General of the State of New York, pursuant to CFLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiffs contention, the defendant Eliot Spitzer, Attorney General (hereinafter Attorney General), was not a proper party to the action since he did not administer the pension fund at issue (see Matter of N.J. Koss, Inc. v Regan, 149 AD2d 785, 787 [1989]; Joanne S. v Carey, 115 AD2d 4, 9 [1986]; Sobel v Higgins, 151 Misc 2d 876, 878 [1991]).

Further, the relief sought is in the nature of mandamus, which is unavailable to compel the performance of a discretionary act (see Matter of Garrison Protective Servs. v Office of Comptroller of City of N.Y., 92 NY2d 732, 736 [1999]; Matter of Crain Com[518]*518munications v Hughes, 74 NY2d 626, 628 [1989]; Klostermann v Cuomo, 61 NY2d 525, 529 [1984]). The Attorney General has the discretion regarding whether to commence suit, and a court has no authority to interfere with such discretion (see People ex rel. Demarest v Fairchild, 67 NY 334, 336 [1876]; Matter of Lewis v Lefkowitz, 32 Misc 2d 434 [1961]).

Lastly, inasmuch as a qui tarn action is a creation of statute (see Grover v Morris, 73 NY 473, 478 [1878]), the plaintiff was not authorized to bring such an action in the place of the defendant Attorney General in the absence of a statute providing for such right. Florio, J.P., Schmidt, Adams and Cozier, JJ., concur.

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In an action, inter aha, in effect, to direct the defendant Eliot Spitzer, Attorney General of the State of New York, to compel the remaining defendants to comply with the Fension Impairment Clause of the New York State Constitution (NY Const, art Y § 7), the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated February 11, 2004, which granted the motion of the defendant Eliot Spitzer, Attorney General of the State of New York, pursuant to CFLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiffs contention, the defendant Eliot Spitzer, Attorney General (hereinafter Attorney General), was not a proper party to the action since he did not administer the pension fund at issue (see Matter of N.J. Koss, Inc. v Regan, 149 AD2d 785, 787 [1989]; Joanne S. v Carey, 115 AD2d 4, 9 [1986]; Sobel v Higgins, 151 Misc 2d 876, 878 [1991]).

Further, the relief sought is in the nature of mandamus, which is unavailable to compel the performance of a discretionary act (see Matter of Garrison Protective Servs. v Office of Comptroller of City of N.Y., 92 NY2d 732, 736 [1999]; Matter of Crain Com[518]*518munications v Hughes, 74 NY2d 626, 628 [1989]; Klostermann v Cuomo, 61 NY2d 525, 529 [1984]). The Attorney General has the discretion regarding whether to commence suit, and a court has no authority to interfere with such discretion (see People ex rel. Demarest v Fairchild, 67 NY 334, 336 [1876]; Matter of Lewis v Lefkowitz, 32 Misc 2d 434 [1961]).

Lastly, inasmuch as a qui tarn action is a creation of statute (see Grover v Morris, 73 NY 473, 478 [1878]), the plaintiff was not authorized to bring such an action in the place of the defendant Attorney General in the absence of a statute providing for such right. Florio, J.P., Schmidt, Adams and Cozier, JJ., concur.

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Bluebook (online)

13 A.D.3d 517, 786 N.Y.S.2d 575, 2004 N.Y. App. Div. LEXIS 15849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vsf-coalition-inc-v-scoppetta-nyappdiv-2004.

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