Opinion
# 2017-032-043 Claim No. 128589 Motion No. M-90402
08-31-2017
JOSEPHINE DRAKEFORD v. THE STATE OF NEW YORK
Josephine Drakeford, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Anthony Rotondi, Assistant Attorney General, Of Counsel
Synopsis
Defendant's motion for summary judgement is granted and the claim, which alleges damages due to defendant's delay in sending claimant her pension check, is dismissed as there is no material issue of fact requiring trial of the action.
Case information
| UID: | 2017-032-043 |
| Claimant(s): | JOSEPHINE DRAKEFORD |
| Claimant short name: | DRAKEFORD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128589 |
| Motion number(s): | M-90402 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Josephine Drakeford, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Anthony Rotondi, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | August 31, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
FACTS
Claimant commenced this action for the delay in receiving one pension check in September 2016. Claimant alleges that she had problems with her bank account, so she closed one account and opened another account in June 2016. She alleges that three pension checks were correctly deposited into her new account but the September check was sent to the old account number which had been closed. Claimant alleges that the delay in receiving her check caused her bank account to be withdrawn, and subsequently, she suffered pain, suffering and embarrassment for the error.
Defendant submits the affidavit of Catherine Dell'Angelo who is employed by the New York State Office of the State Comptroller as the Pension Services Area Manager. Her responsibilities include overseeing pension payments including benefit calculations and direct deposits. In September 2015, claimant was advised that her gross monthly pension payment was $378.96 which is the amount payable before any deductions or credits. Due to a $2.00 deduction for union dues, claimant's net monthly benefits payment for September 2015-September 2016 was $376.96 (Affidavit in Support of Motion for Summary Judgment, Exhibit 1).
Dell'Angelo also avers, that claimant's monthly pension payments for June and July 2016 were deposited by electronic fund transfer into her old account. The August 2016 pension payment was rejected by claimant's bank because the old account had been closed. The New York State and Local Employees Retirement System (NYSLERS) promptly notified her of the rejection within four days of the notification to NYSLERS by the bank. On September 6, 2016 NYSLERS received a new bank direct deposit form from claimant. No prior notification had been received by NYSLERS. On September 8, 2016, NYSLERS notified claimant that future pension payments would be deposited in her new account as well as the August 2016 payment that had been rejected by the bank (Affidavit in Support of Motion for Summary Judgment, Exhibit 1).
In support of Dell'Angelo's affidavit, defendant submitted computer print-outs that indicate that claimant was, indeed, issued her pension monies by electronic fund transfer during the months at issue, June-September 2016 (Exhibits B-1 and B-2). A letter was sent to claimant on September 6, 2016, at her present address, by the Office of the State Comptroller indicating its inability to transmit her check to her old account number because it had been closed (Exhibit B-4). Also on said date, the Office of the State Comptroller, also sent claimant another letter with an enrollment application for electronic funds transfer and instructions (Exhibit B-5). Exhibit B-6 appears to be an executed authorization form by claimant on a Chase Bank form, dated September 1, 2016, authorizing the "New York State Division of Parole" to automatically deposit her payroll check in her new account number. Exhibit B-7 is a letter from the Office of the State Comptroller dated September 8, 2016 indicating that beginning on September 30, 2016, her pension benefit would be deposited into her new account. Exhibit B-8 is a letter from NYSLERS dated September 8, 2016 noting that her August 31, 2016 check was unable to be transmitted as her prior account had been closed. NYSLERS also indicates in said letter that it was transmitting her monies to her new account and would be available to her in three business days. Exhibit B-9 shows that it was electronically deposited into her new account on September 13, 2016.
Claimant, appearing pro se, submitted an affidavit in opposition to defendant's motion for summary judgment. At best the Court can tell, claimant argues that a triable issue exists because there is an overdue payment due and there are no records of a paper check being sent to claimant's address. She submitted a "Memorandum of Points and Authorities" with references to the Fair Labor Standards Act and non-New York common law without specificity regarding the facts of her case. Claimant also attached a publication from the New York State Department of Labor concerning when wages are to be paid.
LAW
"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept 2011]). In considering the motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept 2011]).
ANALYSIS
In considering the evidence in a light most favorable to claimant, the Court finds that defendant has met its burden that there exists no question of the material and relevant facts of the claim. Based upon the Dell'Angelo Affidavit and the exhibits attached thereto, it is clear to the Court that claimant closed her old bank account without properly authorizing the Office of the State Comptroller to redirected her pension payment into her new account. It is also clear that claimant has been receiving her pension checks by electronic fund transfer since at least 2015 (Exhibit B-1). The Comptroller's Office promptly responded to her mistake and her monies were correctly deposited once she properly authorized NYSLERS to do so. Claimant has not submitted any evidence, e.g., bank statements to support her claim and to refute the orderly and persuasive evidence provided by defendant. Therefore, claimant has failed to meet her burden to produce evidentiary proof to establish the existence of material issues of fact which would require trial of this action.
Accordingly, it is here by
ORDERED, that defendant's motion for summary judgement (M-90402) is granted and Claim No. 128589 is dismissed in its entirety.
August 31, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, dated September 20, 2016. 2. Verified Answer, dated December 22, 2016 3. Affirmation in Support of Defendant's Motion for Summary Judgment, affirmed by Anthony Rotondi, AAG, on May 8, 2017, with exhibits 2. Affirmation in Opposition to Defendant's Motion for Summary Judgment, affirmed by Josephine Drakeford, on May 16, 2017, with attachments.