Opinion
# 2014-045-017 Claim No. 123603 Motion No. M-84481
06-18-2014
JOHN CRAMER v. STATE OF NEW YORK
John Cramer, Pro Se Hon. Eric T. Schneiderman, Attorney General By: Patricia M. Hingerton, Assistant Attorney General
Synopsis
Defendant's motion to dismiss, claim implicates whistleblower statutes Labor Law 740 and Civil Service Law 75-b.
Case information
| UID: | 2014-045-017 |
| Claimant(s): | JOHN CRAMER |
| Claimant short name: | CRAMER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123603 |
| Motion number(s): | M-84481 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | John Cramer, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Patricia M. Hingerton, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 18, 2014 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation with annexed Exhibits A-K, Defendant's Memorandum of Law in Support, Claimant's Notice of Motion, Claimant's Affidavit in Opposition, Claimant's Response in Opposition and Defendant's Reply Memorandum.
Defendant, the State of New York, has brought this motion to dismiss the claim pursuant to Civil Practice Law and Rules (CPLR) 3211 and Court of Claims Act (CCA) §§ 8, 9, 10 and 11. Claimant, John Cramer, has opposed this motion.
The claim in this matter concerns the administrative determination by the New York State Unified Court System (UCS) to deny claimant, a court officer, Line of Duty Injury (LODI) pay status. Claimant alleges that on August 24, 2011 he was on duty at the desk officer post in the Security Operation Unit Office at 400 Carleton Avenue, Room 110, Central Islip, Suffolk County. At 11:15 a.m. claimant was watching the security cameras when Sergeant Daniel Freisem passed behind him and struck him twice in the shoulder exacerbating prior injuries. Claimant alleges permanent injuries and disabilities due to the alleged assault. Claimant has been unable to return to work since the alleged assault. Claimant has seen numerous physicians since the subject incident and received workers' compensation benefits, social security disability and has been authorized to receive a court officer's accidental disability retirement benefit.
Following the assault claimant applied for LODI pay status from the UCS which was initially denied by UCS and then denied on appeal by UCS on September 20, 2011. On January 4, 2012 claimant was informed by UCS that retroactive LODI pay was being granted, however at some point that determination was rescinded due to a further medical examination conducted on April 26, 2012. The results of the New York State Insurance Fund Independent Medical Exam held that date found that claimant could return to work, full duty with no restrictions and that pursuant to the Union Contract claimant's LODI benefits were being terminated as of the close of business on May 7, 2012.
Claimant served the claim in this matter on defendant on December 4, 2013. Defendant has no record of having received a notice of intention to file a claim which preceded its receipt of the claim. To the extent claimant is bringing a claim for an alleged assault which occurred on August 24, 2011 it is untimely and must be dismissed (Lepkowski v State of New York,1 NY3d 201 [2003]). Even if claimant had served a timely notice of intention to file a claim, his claim for assault was served outside the time limitation period set forth in CCA § 10 (3-b).
To the extent claimant is premising his claim on Labor Law § 740 and Civil Service Law § 75-b it must also fail. Claimant's allegations do not fall under any of the enumerated prohibitions found in Labor Law § 740 (2). Similarly, claimant's allegations do not form the basis of a claim under Civil Service Law § 75-b (2).
Civil Service Law § 75- b incorporates Labor Law § 740 provisions to public employees.
Claimant is also requesting that the Court direct he be given LODI pay and other benefits owed to him by the UCS as well as a recalculation of his salary and benefits dating back to 2011. Essentially, claimant's remaining allegations seek a review by this Court of an adverse determination of a State agency.
"Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case" (Matter of Gross v Perales, 72 NY2d 231-236 [1988]). The Court finds, based on the facts presented, that the gravamen of claimant's action is one for equitable relief and that any monetary damages are incidental to his claim. The Court of Claims is a Court of limited jurisdiction and lacks jurisdiction where monetary relief is incidental to the claim (CCA § 9). When an action concerns the review of an adverse State agency determination or failure of a body to perform a duty enjoined upon it by law, an Article 78 proceeding in Supreme Court is the proper forum (Matter of Gross v Perales, 72 NY2d 231; Feuer v State of New York, 101 AD3d 1550 [3d Dept 2012]; Green v State of New York, 90 AD3d 1577 [4th Dept 2011]; McGuinness v New York State Workers' Compensation Bd., 41 AD3d 557 [2d Dept 2007]). Consequently, the Court does not have jurisdiction over the action and must dismiss the claim.
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed in its entirety.
June 18, 2014
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims