Opinion
# 2012-015-306 Claim No. 120464 Motion No. M-80694
03-16-2012
ANDERSON v. THE STATE OF NEW YORK
Synopsis
Constitutional tort claim was dismissed as untimely. Case information
UID: 2012-015-306 Claimant(s): STEPHEN ANDERSON Claimant short name: ANDERSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120464 Motion number(s): M-80694 Cross-motion number(s): Judge: FRANCIS T. COLLINS The Murray Law Firm, PLLC Claimant's attorney: By: Joseph C. Berger, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Anthony Rotondi, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: March 16, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) and (8) on the ground the claim was untimely filed and served. The claim filed on October 14, 2011and served on October 18, 2011 alleges that claimant's contract of employment with the State of New York was terminated on September 28, 2010, and future employment opportunities were thereafter denied, due to the exercise of his right to free speech in violation of Article I, Section 8, of the New York State Constitution.
Claimant alleges that, prior to his termination in September 2010, he had been employed by various New York State Agencies "almost continually" since 1990 (Claim, ¶ 6). In July 2010 he was interviewed by a reporter from a local television station regarding the State's failure to pay its independent contractors since the date the proposed State budget had failed to pass the Legislature nearly four months earlier. According to the claim:
"The reporter asked the Plaintiff why he was still working when he had not been paid for almost four months. The Plaintiff stated:
"What choice have you got in this economy? You can leave but can you get another job? It's basically a matter of working on trust that eventually we will get paid . . . I'm not too sure when my money does run out what we're going to do" (Claim, ¶ 15).
Portions of the interview were broadcast on July 21, 2010. Claimant alleges that "almost immediately after making these public comments, [he] was approached by his supervisor, Richard Mason, who told him: " 'You should not have done that' " (Claim, ¶ 19). Co-workers allegedly informed claimant that "they don't like it when you speak to the media" (Claim, ¶ 20). On September 28, 2010 claimant was summoned to a meeting, attended by his supervisor, Mr. Mason, in which he was informed that "he was not suited for the position he had been in for nine months and that he was terminated immediately" (Claim, ¶ 22). Claimant alleges that although he was shocked and embarrassed by his termination, he was confident he could secure new employment with the State through Nfrastructure Technologies, an employment agency. Over the course of the next several months claimant applied for several positions with the State for which he was "well qualified" but was unable to secure even an interview (Claim, ¶ 29). The claim alleges the following:
"33. The Defendant's action in terminating Plaintiff's contract with the State of New York because of his exercise of his right of free speech as guaranteed by Article I, Section 8 of the Constitution of the State of New York, is a violation of said Article which is made actionable by the Court of Claims Act.
34. The Defendant's actions in refusing to consider the Plaintiff for several open jobs for which he is eminently qualified, constitutes retaliation due to his exercise of his right of free speech as guaranteed by Article I, Section 8 of the Constitution of the State of New York, which is made actionable by the Court of Claims Act, Section 10" (Claim, ¶¶ 33, 34).
In an affidavit submitted in opposition to the defendant's dismissal motion, claimant avers that it was not until April 18, 2011 that it became clear to him that he had been "blackballed from ever working for the State again" (affidavit of Stephen Johnson, ¶ 16). He states the following in this regard:
"15. On April 18, 2011, I sent an email to NFRASTRUCTURE asking if they had knowledge of any of these posted jobs. They replied that they had no knowledge of such jobs . . .
16. At that moment, it finally was clear to me that I had been fired for exercising my right of free speech and that now I had been "blackballed" from ever working for the State again" (affidavit of Stephen Anderson, ¶¶ 15, 16).
By letter to the Attorney General's office dated May 2, 2011, claimant's counsel set forth the facts as alleged in the claim and requested that the State investigate the matter. While the letter suggested that a violation of 42 USC §1983 may have occurred, it did not indicate an intent to file a claim against the State in the Court of Claims, it was not verified, and there is no indication that it was served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a).
With respect to claims based on allegations of negligence and intentional tort, both Court of Claims Act §10 (3) and § 10 (3-b) require that either a claim be filed and served, or a notice of intention be served, within ninety days of the date on which the claim accrued.If a notice of intention is employed, the claimant must file and serve a claim within two years of accrual for unintentional torts (Court of Claims Act § 10 [3]) or within one year after accrual for intentional torts (Court of Claims Act § 10 [3-b]).
While defense counsel initially cited only Court of Claims Act § 10 (4) in support of dismissal, claimant cited Court of Claims Act §10 (3-b) in opposition and the defense contended in reply that § 10 (3) was controlling.
The law is settled that a claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable (Prisco v State of New York, 62 AD3d 978 [2009], lv denied 62 AD3d 978 [2009]). Defense counsel contends, and the Court agrees, that claimant's damages were reasonably ascertainable on September 28, 2010, the date claimant was allegedly terminated from his employment. As a result, whether the timeliness of the claim is measured by the time limitations applicable to a claim of negligence under Court of Claims Act § 10 (3), or an unintentional tort pursuant to § 10 (3-b), the claim filed on October 14, 2011 is untimely.
The few cases to address the timeliness of a constitutional tort claim in the Court of Claims have applied § 10 (3) applicable to unintentional torts (see Brown v State of New York, 250 AD2d 314 [1998]; Augat v State of New York, 244 AD2d 835 [1998]). In addressing the viability of constitutional tort causes of action against the State in Brown v State of New York (89 NY2d 172, 194-195 [1996]), the Court of Appeals found that the State is appropriately held answerable for the constitutional torts of its officers and employees because it can avoid such misconduct through adequate training and supervision. Citing Court of Claims Act § 9 [2], the Court further observed that the State waived immunity for the torts of its officers and employees "while acting as such officers or employees". Whether liability of the State for the constitutional torts of its officers and employees is viewed as the product of the State's own negligence in failing to provide adequate training and supervision to its employees (see Kleeman v Rheingold, 81 NY2d 270, 274 n 1[1993]) or the result of the application of the doctrine of respondent superior (see generally Riviello v Waldron, 47 NY2d 297 [1979]) the commission of a constitutional tort is more likely the result of unintentional conduct rather than any intentional conduct on the part of the State, its officers or employees. Accordingly, those cases holding that constitutional torts are governed by Court of Claims Act § 10 (3) are well founded.
Claimant argues in opposition to the motion that his claim did not accrue until April 18, 2011 when he was advised by Nfrastructure that no jobs with the State were available. He argues that the letter from his attorney to the Attorney General's office dated May 2, 2011operated as a notice of intention to file a claim, thereby extending his time to file a claim. Claimant's contrary assertion notwithstanding, his damages became reasonably ascertainable September 28, 2010 when his contract of employment was terminated (see Augat v State of New York, 244 AD2d 835 [1997], lv denied 91 NY2d 814 [1998]). As of that date, all of the elements necessary to bring a claim, including damages, were reasonably ascertainable. As a result, the claim filed on October 14, 2011 - more than one year after the claim accrued - is time-barred.
Even if the Court were to adopt the April 18, 2011 accrual date urged by claimant, the letter from his attorney dated May 2, 2011 was not the procedural equivalent of a notice of intention and did not operate to extend the time period to file and serve the claim. The letter did not articulate an intention to file a claim in the Court of Claims nor does it otherwise conform to the requirements of Court of Claims Act § 11 (b). In addition, there is no evidence that the letter was served in the manner required by Court of Claims Act § 11 (a) (i). Accordingly, whether the claim accrued on September 28, 2010 when claimant's employment was terminated or on April 18, 2011 the claim filed on October 14, 2011 was untimely under both Court of Claims Act §10 (3) and § 10 (3-b).
Claimant also contends that the continuing violation doctrine tolled the accrual of his cause of action alleging damages arising from his inability to secure new employment with the State because he was "blacklisted" for exercising his constitutional right to free speech (claim, § 30). According to claimant's counsel "the accrual period for this cause of action has not even begun to run yet" (affirmation of Joseph C. Berger, ¶ 14). Notably, the instant claim provides no detail with respect to the employment positions for which claimant applied and was rejected.Nevertheless, claimant avers that it became clear to him upon receipt of a notification from Nfrastructure on April 18, 2011 that he was blacklisted for exercising his right to free speech. In the Court's view, the State's alleged failure to hire the claimant for the positions for which he applied subsequent to his termination in September 2010 "were not so interrelated that they could not be separated for the purposes of applying time limitations" (Augat v State of New York 244 AD2d at 837 [quotation marks and citation omitted]). Pleading defects aside, therefore, the claimant's alleged damages arising from the State's rejection of each of his applications for employment were discrete incidents not so interrelated with either his September 2010 termination or each other as to warrant application of the continuing violation doctrine.
Court of Claims Act § 11 (b) required that the claimant set forth in the claim the "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained . . ." Claimant's failure to allege in the claim the specific positions for which he applied and was rejected fails to meet the pleading requirements of this section (see generally Lepkowski v State of New York, 1 NY3d 201 [2003]).
Based on the foregoing, the claim was untimely filed and served. To the extent defendant raises arguments for the first time in reply, they are not considered (Friedman v BHL Realty Corp., 83 AD3d 510 [2011]; Matter of Clinton County (Miner), 39 AD3d 1015 [2007]).
Defendant contends in reply that recognition of a constitutional tort cause of action is unnecessary to vindicate claimant's constitutional rights as alternative avenues of redress were available, including an action pursuant to 42 USC § 1983. Whatever the merit of this argument may be (see e.g. Williams v Town of Greenburgh, 535 F3d 71 [2d Cir 2008]; Curley v Village of Suffern, 268 F3d 65 [2001]; Housing Works v City of New York, 255 AD2d 209 [1998]; McManus v Grippen, 244 AD2d 632 [1997]; Kelly v New York State Exec. Dept., 203 AD2d 836 [1994]), defendant raised it for the first time in his reply papers. As the result, consideration of this argument is foreclosed and, in any event, unnecessary.
Accordingly, defendant's motion is granted and the claim is dismissed.
March 16, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated November 18, 2011;
2. Affirmation of Anthony Rotondi dated November 18, 2011 with exhibit;
3. Affirmation of Joseph C. Berger filed December 8, 2011;
4. Affidavit of Stephen Anderson sworn to December 6, 2011 with exhibits;
5. Affirmation of Anthony Rotondi dated December 19, 2011 with exhibit.