Opinion
Claim No. 135840
08-12-2022
Randall Wiltz, Claimant, v. State of New York, [1] Defendant.
For Claimant: By: Randall Wiltz, Pro Se For Defendant Hon. Letitia A. James, Attorney General of the State of New York By: Lawrence E. Kozar, Esq., Assistant Attorney General
For Claimant: By: Randall Wiltz, Pro Se
For Defendant Hon. Letitia A. James, Attorney General of the State of New York By: Lawrence E. Kozar, Esq., Assistant Attorney General
HON. JAVIER E. VARGAS, JUDGE
Papers Considered:
Claim, Notice of Intention to File Claim & "Amended Complaint" 1-3
Notice of Pre-Answer Motion, Affirmation & Exhibits Annexed 4-9
Affirmation in Support of Opposition, Affidavit & Exhibits Annexed 10-16
Notice of Motion, Affirmation & Exhibits Annexed 17-18
Notice of Motion & "Affirmation" 19-20
Motion in Further Support of Cross Motion & "Affirmation" Annexed 21-22§
Upon the foregoing papers and for the following reasons, the Motions by Defendant the State of New York (hereinafter "State"), seeking dismissal of this Claim pursuant to CPLR 3211(a)(2) and Court of Claims Act §§ 10 and 11, are granted and the Claim is hereby dismissed as provided hereinbelow.
I.
In order to understand the genesis of this Claim, it will be helpful to explain the facts as best as this Court can distill from the Claim and "Verified Amended Complaint." For ten years, Claimant Randall Wiltz (hereinafter "Claimant") was living in a rent-stabilized apartment owned by non-party New York University (hereinafter "NYU") with leaseholder Martha Dewell - with whom he had a relationship and called his "surrogate mother" - until her death in April 2015 (see Wiltz v New York Univ., 119CV03406GHWSDA, 2019 WL 8437456 [SDNY Dec. 23, 2019], report and recommendation adopted, 1:19-CV-03406-GHW, 2020 WL 614658 [SDNY Feb. 10, 2020]). In the months following, Claimant mantains he fell into a deep depression requiring professional medical care.
In late 2015, Claimant submitted an application for a lease renewal as well as accommodations for his "mental disability" to NYU, which was denied. In January of 2016, Claimant received a Notice of Eviction from NYU, which he contends was the result of a "discriminatory harassment scheme" because he is an African American with a "mental disability" (id.). On March 9, 2017, NYU commenced an eviction proceeding in New York County Housing Court, which eventually culminated with a Warrant of Eviction, evicting Claimant from the NYU apartment (id.).
Based upon allegedly discriminatory intent by NYU in their eviction efforts and Housing Court proceedings, Claimant filed a complaint against NYU with the New York State Division of Human Rights (hereinafter "DHR") in May of 2017, requesting an investigation into NYU's actions surrounding his eviction. In 2018, after an investigation, Claimant received a "no probable cause" determination from DHR, essentially finding that there was no wrongdoing by NYU. Unsatisfied with DHR's conclusion, Claimant then challenged the agency determination in a special proceeding, pursuant to CPLR Article 78, in Supreme Court, New York County. In the following months, by Default Judgment dated September 20, 2018, the Supreme Court (Bluth, J.) defaulted DHR for its failure to appear in two pre-trial conferences, overturned its determination and found in favor of Claimant. Upon DHR's motion, by Decision & Order dated June 5, 2019, the Supreme Court (Bluth, J.) vacated the Default Judgment and reinstated DHR's no probable cause determination. Claimant appealed that determination to the Appellate Division, First Department, which, by Decision and Order dated December 22, 2020, unanimously affirmed the Supreme Court decision, and upheld DHR's determination (see Wiltz v New York State Div. of Human Rights, 189 A.D.3d 657 [1st Dept 2020]).
Following the Appellate Division's decision, Claimant commenced the instant action against the State for alleged wrongdoing stemming from his 2017 DHR complaint, investigation and court proceedings. By Claim filed January 14, 2021, Claimant raises many lengthy and incoherent allegations against DHR including, among others, collusion with NYU to bias their investigation, failure to investigate "key elements of discriminatory harassment scheme" in relation to his eviction, and submitting false statements in the 2019 Supreme Court Article 78 proceedings. In essence, Claimant contends that over the course of this five-year saga, DHR colluded with NYU to "coverup a pattern and practice of substandard and tainted investigations that impeded [Claimant's] rights." The January 14, 2021 Claim lists the date of accrual as ostensibly November 25, 2020, the date DHR allegedly denied Claimant's FOIL request for communications between DHR and NYU that he contends would "rectify the harm [he] suffered from [the] wrongful denial of a fair investigation," though no such request form or denial is annexed to the Claim.
On March 8, 2021, the State through its counsel, the New York State Attorney General's Office, filed a pre-answer Motion to Dismiss the Claim. However, before a ruling could be made in response to the State's Motion and without leave, on April 2, 2021, Claimant purported to file a new Notice of Intention to file a Claim with this Court. Shortly thereafter, on April 9, 2021, Claimant submitted a "Verified Amended Complaint/Claim," and subsequently moved, by Notice of Motion filed April 27, 2021, to force the State to accept his Amended Claim. The Amended Claim and supporting documents contain a newly minted accrual date of January 7, 2021, the date of another alleged DHR FOIL request denial that Claimant insists was "intended to compromise [his] court relief requests." Yet again, Claimant fails to annex any proof of the request or denial to his Amended Claim.
By second Notice of Motion filed on April 29, 2021, the State moves for the dismissal of Claimant's Amended Claim, arguing that the Amended Claim should be dismissed for lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2) and Court of Claims Act §§ 10 and 11, because, among other things, Claimant's listed January 7, 2021, accrual date is incorrect as the alleged wrongdoing by DHR goes back much farther. Specifically, the State argues that documentation annexed to the Claim, Amended Claim as well as Claimant's long-winded accounts point to a 2018 accrual date. Since the Claim was not served on the Attorney General's office until January 13, 2021, the State argues the Claim should be dismissed because it was untimely filed and, thus, is jurisdictionally defective under Court of Claims Act §§ 10 and 11.
On May 26, 2021, Claimant filed an "Affirmation" in Opposition to the State's Motion, arguing that the accrual date is proper because his harm is ongoing, as DHR "continues to perpetuate fraud" by "colluding and conspiring" with NYU. He further argues that a number of statutory provisions extend the Statute of Limitations for his Claim. The State and Claimant's Motions have been sub judice since 2021. Following the retirement of the Hon. Faviola A. Soto, who was presiding over this case, on June 30, 2022, all matters and motions currently pending before her have been reassigned to the Undersigned. Upon reading the papers herein, this Court agrees with the State.
II.
Court of Claims Act § 10(3-b) provides, in part, "A claim to recover damages caused by the intentional tort of an officer or employee of the state shall be filed and served upon the attorney general within ninety days after the accrual of such claim." The provisions contained in Court of Claims Act § 10, addressing the timeliness requirements for claims and notices of intention to file a claim, are jurisdictional prerequisites to maintain an action in this court and therefore must be strictly construed (see Bryne v State of New York, 104 A.D.2d 782, 783 [2d Dept 1984]; Mallory v State of New York, 196 A.D.2d 925, 926 [3d Dept 1993]; Grande v State of New York, 160 Misc.2d 383, 386 [Ct Cl 1994]). Pursuant to Court of Claims Act § 11(c), this Court is deprived of jurisdiction if the issue of timeliness "is raised with sufficient particularity by motion or in the answer" by the State (Firth v State of New York, 184 Misc.2d 105, 109 [Ct Cl 2000], citing Sinacore v State of New York, 176 Misc.2d 1, 9 [Ct Cl 1998]).
It is well-established that a claim or cause of action accrues "when damages are reasonably ascertainable" (Inter-Power of New York, Inc. v State of New York, 230 A.D.2d 405, 408 [3d Dept 1997]; see White Plains Parking Auth. v State of New York, 180 A.D.2d 729, 730 [2d Dept 1992]; Greenspan Bros. v State of New York, 122 A.D.2d 249, 250 [2d Dept 1986]). This similarly applies even where the alleged wrongdoing is on-going, although damages may be somewhat indefinite (see Otis El. Co. v State of New York, 52 A.D.2d 380, 380 [3d Dept 1976]). When the harm is being progressively litigated, as here, "the general rule is that the mere existence of the right of appeal does not preclude suit and hence does not push back the date of accrual to the expiration of the time to appeal" (Ferrer v State of New York, 172 Misc.2d 1, 9 [Ct Cl 1996], citing Karen v State of New York, 111 Misc.2d 396 [Ct Cl 1981]; see generally, Reed Co. v Intl. Container Corp., 43 F.Supp. 644, 645 [SDNY 1942] [applying New York law]).
Looking at the present case in the context of the foregoing precedent, the State's Motion to dismiss for untimeliness must be granted. Though Claimant has haphazardly filed many pleadings in the present case without leave, for the sake of the inquiry into timeliness, this Court will use the earliest date of January 14, 2021, when Claimant's original Claim was served on the Attorney General, as the date the instant Claim was filed and served. Thus, this case calls on this Court to determine what the proper accrual date is for Claimant's alleged ongoing harm as a result of the purported "discriminatory harassment scheme" put on by DHR in "collusion" with NYU. The prior decision vacating the 2017 DHR finding was favorable to Claimant and at that point, no harm had accrued. But when the DHR determination was reinstated in 2019, Claimant's alleged harm would have been fully ascertainable, and any further legal or FOIL action by him became optional. The agency determination was made final via the CPLR article 78 decision as the outcome of the appeal would not alter the basic facts and conduct underlying the claim (see Ton-Da-Lay, Ltd. v. State of New York, 70 A.D.2d 742, 742-43 [3d Dept 1979]).
Thus, the proper date Claimant's harm accrued is June 5, 2019, the date the Supreme Court vacated the Default Judgment in Claimant's article 78 proceeding (see Wiltz, 189 A.D.3d 657). His subsequent appeals do not alter the alleged conduct underlying Claimant's allegations. If DHR had colluded with NYU as a part of a "discriminatory harassment scheme" in its investigation and the subsequent Article 78 proceedings, then the harm sustained by Claimant from the alleged collusion would not be altered any further at the appellate level. Therefore, the proper accrual date is June 5, 2019.
With this accrual date in mind, Claimant filed and served the present Claim at the earliest on January 14, 2021, or at the latest on April 9, 2021 (Amended Claim). As stated above, Court of Claims Act § 10(3-b) provides 90-days from accrual for Claimant to file and serve his Claim. The present Claim was not filed until 588 days or one year, seven months, and over a week after accrual, well outside the statutory 90-day requirement. Therefore, the Claim is time barred and jurisdictionally defective.
III.
Nonetheless, Claimant contends that the statutory time frame for him to file a Claim is extended by two years due to his alleged on-going "legally established disability" pursuant to Court of Claims Act § 10(5). Court of Claims Act § 10(5) provides, "If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." As this provision is a jurisdictional requirement contained in Court of Claims Act § 10, it must similarly be strictly construed (see Bryne, 104 A.D.2d 783; Mallory, 196 A.D.2d 926; Grande, 160 Misc.2d 386). Although Court of Claims Act § 10(5) gives no definition for "legal disability," it has a counterpart in CPLR 208, which provides a tolling period for Claimants "under a disability because of infancy or insanity at the time the cause of action accrues" (Barrett v State of New York at 68). The Court of Appeals has interpreted this to mean that the insanity toll is only provided for "those individuals who are unable to protect their legal rights because of an over-all inability to function in society" (McCarthy v Volkswagen of Am., 55 N.Y.2d 543, 548 [Ct App 1982]). Thus, where a plaintiff carried on other court proceedings during the time he alleged an on-going disability of insanity due to post-traumatic stress disorder, the Court of Appeals held that "it cannot be said that plaintiff was suffering from a temporary mental incapacity which prevented him from understanding or protecting his legal rights" (id. at 547). Additionally, the Court of Appeals noted that to interpret the provisions of CPLR 208 any other way would inappropriately expand the statutory time frames put in place by the Legislature, therefore, without legislative action to the contrary, CPLR 208 must be read narrowly (id.).
In the present case, Claimant asserts no proof of his alleged disability, but his Amended Claim states that he was in the care of medical professionals due to "deep depression" brought on by "tremendous grief" sometime between late 2015 and January 2016, and that he asked for housing accommodations due to a mental disability. Thus, it is reasonable to infer that this is the disability Claimant contends qualifies him for the tolling provisions of Court of Claims Act § 10 (5) and CPLR 208. However, since January 2016, Claimant has brought or been a party to actions in the Housing Court, the Supreme Court, the First Department, and even the United States District Court for the Southern District of New York (see Wiltz v New York Univ., supra). In all or most of these actions, he has been self-represented. Therefore, it cannot be said that Claimant was or continues to suffer from a mental incapacity or "legal disability" to the extent that it prevents him from understanding or protecting his legal rights. Thus, Claimant does not qualify for the tolling period under Court of Claims Act § 10(5) and CPLR 208, and his Claim is time barred and jurisdictionally defective.
Finally, Claimant contends that his assertion of intentional torts in his Amended Claim extend the Statute of Limitations. "A claimant asserting an intentional tort claim against the State must meet the time limitations contained in [Court of Claims Act § 10(3)]" (Firth, 184 Misc.2d 110). As previously stated, Court of Claims Act § 10(3) contains the 90-day service requirement. Thus, Claimant's assertion of intentional torts does not cure the timeliness issue. Nor can this Court grant Claimant leave to further amend his Claim to comply with Court of Claims Act §§ 10 and 11, when it is determined to be jurisdictionally defective (see Calderazzo v State of New York, 74 A.D.2d 954 [3d Dept 1980]; Konviser v State of New York, 180 Misc.2d 174 [Ct Cl 1999]).
IV.
In accordance with the foregoing, the State's Motions to dismiss the Claim and Amended Claim are granted and the Claim is hereby dismissed in its entirety. Claimant's cross motion is denied. This constitutes the decision and order of the Court.