Loftin v. New York City Department of Social Services

—Judgment, Supreme Court, New York County (Richard Lowe, III, J.), entered May 27, 1998, which, in a CPLR article 78 proceeding to compel respondent to pay petitioner certain unpaid public assistance benefits, insofar as appealed from, dismissed so much of the petition as sought damages for pain and suffering, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 30, 1998, which denied petitioner’s motion to reargue the dismissal of such claim, unanimously dismissed, without costs, as taken from a nonappealable paper. Petitioner’s claim for pain and suffering, predicated on his alleged expenditure of time and effort in enforcing his right to unpaid public assistance benefits, seeks damages that are “consequential”, not “incidental”, to such relief, and, as such, cannot be awarded in the context of an article 78 proceeding (CPLR 7806; cf., Matter of Gross v Perales, 72 NY2d 231; Matter of Garnett v Sobol, 222 AD2d 850, 851, lv denied 87 NY2d 810, cert denied 519 US 849). Concur — Rosenberger, J. P., Tom, Mazzarelli, Lerner and Rubin, JJ.