Opinion
# 2014-032-120 Claim No. 123541-A Motion No. M-84353 Motion No. M-84743
07-08-2014
MATTHEW WATKINS v. THE STATE OF NEW YORK
Gleason, Dunn, Walsh & O'Shea By: Ronald G. Dunn, Esq. By: Sarah J. Burger, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Anthony Rotondi, Assistant Attorney General, Of Counsel
Synopsis
The Court grants defendant's motion to dismiss the claim as untimely and denies claimant's motion for late claim relief on the basis that there was no excuse for the delay in filing and there is no merit to the claim, which alleges that claimant was wrongfully terminated from his employment with the New York State Office of Information Technology Services, allegedly in violation of the Americans with Disabilities Act of 1990 and the Family and Medical Leave Act.
Case information
| UID: | 2014-032-120 |
| Claimant(s): | MATTHEW WATKINS |
| Claimant short name: | WATKINS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123541-A |
| Motion number(s): | M-84353, M-84743 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Gleason, Dunn, Walsh & O'Shea By: Ronald G. Dunn, Esq. By: Sarah J. Burger, Esq. |
| 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: | July 8, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Matthew Watkins, was terminated from his employment with the New York State Office of Information Technology Services (OITS) on September 18, 2012, allegedly in violation of the Americans with Disabilities Act of 1990, 42 USC § 12101 (ADA) and the Family and Medical Leave Act, 29 USC § 2601, et seq, (FMLA). On November 21, 2013, claimant filed with the Court of Claims motion No. M-84353 for leave to file a late claim and claim No. 123541-A, incorrectly captioned a "verified complaint." On March 5, 2014, defendant moved to dismiss claim No. 123541-A. Initially, the Court will address defendant's motion to dismiss the claim because if defendant's motion is denied, it will obviate the need for the Court to decide claimant's motion for leave to late file a claim.
An action is commenced in the Court of Claims by the filing and service of a claim, not a complaint. Henceforth, the complaint will be appropriately referred to as the claim.
Defendant's Motion to Dismiss (M-84743)
Defendant moves to dismiss claim No. 123541-A on the grounds that this Court lacks subject matter jurisdiction as the claim was untimely. The claim was filed and personally served on November 21, 2013. An answer was filed and served on January 15, 2014. Pursuant to the fourth defense in its answer, defendant alleges that the Court lacks subject matter jurisdiction because the claim was untimely as neither the claim nor a notice of intention was served within ninety (90) days of accrual as required by Court of Claims Act §§ 10 and 10 (3-b). Defendant also alleges in the fifteenth defense in its answer that the Court lacks subject matter jurisdiction because the claim was untimely as neither the claim nor a notice of intention was served within six (6) months of accrual of the claim pursuant to Court of Claims Act §§ 10 (3), 10 (3-b) and 10 (4) or 11.
The failure to timely comply with the filing and service requirements of the Court of Claims Act gives rise to a jurisdictional defect, compelling dismissal of the claim (Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]), provided that the jurisdictional defect is raised with particularity in either a motion to dismiss made before service of the responsive pleading or in the responsive pleading (Court of Claims Act § 11 [c]). Here, defendant has properly raised the defense in its answer.
Assuming without deciding that a claim pursuant to the ADA and the FMLA may be asserted against the State in the Court of Claims (see Montalvo v State of New York, UID No. 2013-049-013 [Ct Cl, Weinstein, J., Mar. 6, 2013]), a question remains as to whether the ninety (90) day period after accrual within which to commence an action for injuries caused by the negligence or intentional acts of an officer or employee of the State under Court of Claims Act § 10 (3) and § 10 (3-b) or the six (6) month period after accrual within which to commence an action for breach of contract or any other claim not otherwise provided for is applicable. It is not necessary to decide which section is applicable as the action is untimely under any of the possibilities.
Decisions of the Court of Claims may be found on the Court's website at www.nyscourtofclaims.state.ny.us.
The latest possible accrual date is September 18, 2012, the effective date of claimant's termination from OITS. Thus, even if the longer six (6) months of accrual period afforded by Court of Claims Act § 10 (4) is applicable, the claim filed and served on November 21, 2013, approximately 14 months after accrual, is untimely and must be dismissed.
In opposition, claimant argues that the section 10 periods for commencing claims in the Court of Claims are tolled pending an administrative claim with the Equal Employment Opportunity Commission (EEOC) and receipt from the EEOC of a right to sue letter. Here, claimant's right to sue letter was dated August 21, 2013 and allegedly received on August 23, 2013. Claimant was advised in the right to sue letter that, if he intended to commence a lawsuit, he needed to do so within 90 days of receipt of the right to sue letter. Claimant argues that the claim is timely as the claim was filed within 90 days of receipt of the right to sue letter.
The right to sue letter claimant received, however, noted that "[t]he time limit for filing suit based on a claim under state law may be different." Moreover, "[t]he fact that the ADA sets forth its own particular rules for timeliness does not absolve the claimant of the need to file within the deadlines set forth in the Court of Claims Act § 10, which govern actions filed in this Court .... Nothing in either New York or federal law indicates that those requirements are waived in the event claimant has commenced an action within the limitations period provided for by the ADA for federal suits" (Montalvo v State of New York, supra at pp 3-4; see also Rehman v State of New York, UID No. 2009-045-021 [Ct Cl, Lopez-Summa, J., Aug. 5, 2009]). Because the claim was neither filed nor served within the deadlines set forth in section 10 of the Court of Claims Act, defendant's motion No. M-84743 to dismiss is granted and claim No. 123541-A is dismissed.
Claimant's Motion for Leave to Late File a Claim (M-84353)
Because the Court granted defendant's motion (M-84743) and dismissed claim No. 123541-A, the Court will proceed to discuss claimant's motion for leave to late file a claim (M-84353). The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must first determine whether the claim would be timely under Article 2 of the New York Civil Practice Law and Rules (CPLR) and then consider certain statutory factors (Court of Claims Act § 10 [6]). Among the factors to consider are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve upon the Attorney General a timely claim or notice of intention to file a claim resulted in substantial prejudice to the State; and (6) whether the claimant has any other available remedy (Court of Claims Act § 10 [6]). The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Fireman's Retirement Sys., 55 NY2d 979 [1982]).
Whether the claim is meritorious is the most important factor as it would be futile to proceed with a meritless claim (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). Unlike those who file their claims in a timely manner, a party seeking to file a late claim must demonstrate to the Court's satisfaction that the proposed claim appears to be meritorious (Witko v State of New York, 212 AD2d 889 [3d Dept 1995]). Thus, to succeed on a motion for leave to late file, the movant must establish that the proposed claim is not patently groundless, frivolous or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Initially, the Court must determine if claimant's motion was brought before an action asserting a like claim against a citizen of the State would be barred under the provisions of Article 2 of the CPLR. Claimant argues that his motion is timely as he had 90 days from receipt of the right to sue letter to commence an action under the ADA and had two years from the last event constituting the alleged violation, the date of termination, to bring an action under the FMLA. A Human Rights Law claim brought in Supreme Court would be subject to the three (3) year statute of limitations ( CPLR § 214 [2]; Rehman v State of New York, supra at p 8). Under any of these statutes, however, claimant's motion for leave to late file is timely.
The first factor to consider is whether the delay was excusable. In his motion papers, claimant offers no excuse for the delay in filing a claim. It is only in counsel's reply affirmation that it is argued that claimant was awaiting receipt of the right to sue letter before commencing an action. Technically, an argument raised for the first time in a reply need not be considered, as the purpose of reply papers is to address arguments made in opposition to the movant's position and not to allow the movant to introduce new arguments in support of his motion (Azzopardi v American Blower Corp., 192 AD2d 453 [1st Dept 1993]; Anderson v State of New York, UID No. 2012-015-306 [Ct Cl, Collins, J., Mar. 16, 2012]). But were the Court to consider claimant's reply argument, claimant is reminded that claims brought in this Court are subject to the time limitations set forth in the Court of Claims Act. At most, claimant's argument amounts to ignorance of the law, which is not an acceptable excuse for failing to timely file a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]).This factor thus weighs against claimant's motion for leave to file a late claim.
The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 1998 NY Slip Op 98201 [Ct Cl 1998]). Defendant admits that it cannot argue a lack of notice or lack of an opportunity to investigate. Apparently, defendant is referring to its participation in the administrative claim filed by claimant with the Division of Human Rights. Because of this participation, the Court concludes that defendant would not be substantially prejudiced if permission to late file a claim were granted. These three factors thus weigh in favor of claimant's motion.
The most important factor for the Court to consider is whether the proposed claim appears to be meritorious. Unfortunately, claimant offers little to support its argument that his proposed claim has merit. Defendant does not argue that the Court of Claims does not have jurisdiction over Title I claims under the ADA or the FMLA. Rather, defendant argues that the relief requested by claimant in his proposed claim is not cognizable in the Court of Claims.
Attached to claimant's motion papers is a duplicate copy of claim No. 123541-A. The Court is treating this claim as the proposed claim which must accompany a motion for permission to late file a claim (Court of Claims Act § 10 [6]).
The Court of Claims is a Court of limited jurisdiction. It does not have the jurisdiction to grant strictly equitable relief (see Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). The threshold question in determining whether the Court of Claims has subject matter jurisdiction over a claim is "'[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim'" (id. quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination, which the Court of Claims has no subject jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641 [3d Dept 2007]; City of New York v State of New York, 46 AD3d 1168 [3d Dept 2007], lv denied 10 NY3d 705 [2008]). An administrative agency's determination may be reviewed only in the context of a CPLR Article 78 proceeding commenced in Supreme Court; such action cannot be brought in the Court of Claims (CPLR § 7801; see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753 [1991]; Matter of Salahuddin v Connell, 53 AD3d 898 [3d Dept 2008]).
In the proposed claim, claimant alleges that he is entitled to: (1) a declaration that the acts and practices complained of are in violation of the ADA and FMLA; (2) a preliminary and permanent injunction enjoining violations of ADA and FMLA; (3) reinstatement to his prior position or, in the alternative, an award of front pay; (4) a direction to defendant to take such action as would ensure that defendant's "unlawful employment practices" are eliminated and no longer affect claimant; (5) a direction to defendant to place claimant in the position he would have had and make him whole by awarding him wages, bonuses, pension and other lost benefits; (6) an award of compensatory damages for mental anguish and humiliation; (7) punitive damages; and (8) costs and attorneys' fees.
Claimant, while admitting that his claim for front pay is a form of equitable relief (see Cline v Wal-Mart Stores, 144 F3d 294 [4th Cir 1998]), argues in counsel's reply that he is not primarily seeking equitable relief. Rather, he argues that his primary claim seeks monetary remedies such as back pay, back benefits and compensatory damages for emotional distress. While there is no simple test to determine if the essential nature of a claim is to recover money damages or whether monetary relief is incidental to the primary claim, the Court should consider what it would have to do to award claimant monetary damages (Ouziel v State of New York, 174 Misc 2d 900 [Ct Cl 1997]). Here, in order to award claimant back pay and back benefits, the court would first have to find that claimant's dismissal by the OITS was unlawful. An agency's determination, however, may be reviewed only in the context of a CPLR Article 78 proceeding in Supreme Court (see Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005], supra; Taylor v State of New York, 160 Misc 2d 120 [Ct Cl 1994]).
Similarly, insofar as the proposed claim seeks a declaration that the termination of claimant's employment violated the ADA or FMLA, this Court lacks jurisdiction as the Court of Claims "is not the appropriate forum in which to seek declaratory relief" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; CPLR § 3001; Court of Claims Act § 9). Nor is the Court of Claims the appropriate forum within which to bring a claim for injunctive relief or for punitive damages. The Court of Claims does not have jurisdiction to grant injunctive relief (Matter of Milner v New York State Higher Educ. Servs. Corp., 4 Misc 3d 221 [Ct Cl 2004], affd 24 AD3d 977 [3d Dept 2005]), and the waiver of immunity set forth in Court of Claims Act § 8 does not permit punitive damages to be assessed against the State or its political subdivisions (Sharapata v Town of Islip, 56 NY2d 332 [1982]). Further, a claim for intentional infliction of emotional distress against the State is prohibited as against public policy (Ellison v City of New Rochelle, 62 AD3d 830 [2d Dept 2009]), and a claim for negligent infliction generally may not be maintained against the State, except in vary limited circumstances (see Lauer v City of New York, 95 NY2d 95 [2000]). Finally, the Court of Claims has no authority to award attorneys' fees or costs (Court of Claims Act § 27). Unfortunately, claimant has failed to show that the relief requested in his proposed claim is cognizable in the Court of Claims or met his burden of showing that the proposed claim is not groundless, frivolous or legally defective (Hills v State of New York, UID No. 2008-040-073 (Ct Cl, McCarthy, J., Oct. 24, 2008]). The most important factor, merit, thus weighs against granting claimant's motion.
The last factor to consider is whether the claimant has any other available remedy. Here, claimant could have commenced an action in Supreme Court under the ADA and FMLA (Schwartz v New York State Dept. of Corrections and Community Supervision., 2013 WL 4013781, 2013 NY Slip Op 31756 [U] [Sup Ct, Albany County, 2013]; Matter of Heyward v State of New York, 2009 WL 2729838, 2009 NY Slip Op 31903 [U] [Sup Ct, New York County 2009]; Martinez -Tolentino v Buffalo State Coll., 277 AD2d 899 [4th Dept 2000]). Accordingly, this factor weighs against the granting of claimant's motion.
The Court has considered all of the factors set forth in Court of Claims Act § 10 (6) and concludes that they weigh against granting claimant's motion for late claim relief. Accordingly, claimant's motion No. M-84353 is denied.
Conclusion
Based on the foregoing, defendant's motion to dismiss (M-84743) is granted and claim No. 123541-A is dismissed and claimant's motion for leave to file a late claim (M-84353) is denied.
July 8, 2014
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion No. M-84353 for leave to late file dated November 21, 2013; and Affirmation of Ronald G. Dunn, Esq. dated November 21, 2013, with annexed Exhibits A-F.
2. Affirmation in Opposition of Anthony Rotondi, AAG, dated January 7, 2014.
3. Reply Affirmation of Ronald G. Dunn, Esq. dated January 11, 2014.
4. Defendant's Notice of Motion No. M-84743 to Dismiss dated March 5, 2014; and Affirmation of Anthony Rotondi, AAG, dated March 4, 2014, with annexed Exhibits A-B.
5. Affirmation in Opposition of Ronald G. Dunn, Esq. dated March 24, 2014, with annexed Exhibits A-B; Claimant's Memorandum of Law in Opposition dated March 24, 2014; and Appendix to Claimant's Memorandum of Law.
6. Reply Affirmation of Anthony Rotondi, AAG dated March 28, 2014.
The caption of the Reply Affirmation of Anthony Rotondi dated March 28, 2014 indicates that it refers to Claimant's Motion No. M-84353 for leave to late file. A reading of the Reply Affirmation, however, reveals that it is in further support of Defendant's Motion No. M-84743 to dismiss.