Opinion
# 2015-015-045 Claim No. 125046 Motion No. M-85896
03-09-2015
SCOTT BALLARD v. THE STATE OF NEW YORK
McKain Law Firm, P.C. By: Kevin K. McKain, Esquire Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Claimant's allegation that the State wrongfully disclosed confidential and inaccurate information concerning claimant's surrender of his teacher's certificate was directly contradicted by the documentary evidence. Claim was dismised.
Case information
UID: | 2015-015-045 |
Claimant(s): | SCOTT BALLARD |
Claimant short name: | BALLARD |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 125046 |
Motion number(s): | M-85896 |
Cross-motion number(s): | |
Judge: | FRANCIS T. COLLINS |
Claimant's attorney: | McKain Law Firm, P.C. By: Kevin K. McKain, Esquire |
Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 9, 2015 |
City: | Saratoga Springs |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2), (5), (7) and (8).
The claim sets forth the following allegations: Claimant was employed as a teacher by the Medina Central School District (MCSD) (Exhibit B, claim, ¶ 8). On September 19, 2008, claimant was suspended from teaching without pay on the ground he had flirted with a student and gave her a present (id. at ¶ 9). On July 3, 2009, the New York State Education Department (NYSED) filed and served claimant with a Notice of Substantial Question of Moral Character (id. at ¶ 13). On September 14, 2009, claimant resigned from his teaching position in exchange for the payment by MCSD of all back pay and one year's additional salary (id. at ¶¶ 11, 12). On November 12, 2009, claimant attended a hearing in connection with the charges that had been brought against him by NYSED (id. at ¶ 14). Before the hearing started, however, claimant "agreed to voluntarily surrender his New York State teaching certificate as consideration for the NYSED's withdrawal, with prejudice, of any question regarding [his] good moral character" (id. at ¶ 15). Central to the instant claim is the allegation that "[p]ursuant to the Surrender Agreement, the NYSED agreed not to disclose to anyone the nature of the allegations against [claimant] that resulted in the Surrender Agreement" (id. at ¶ 18). Claimant alleges that the claim arose on February 6, 2013 when he "first became aware that the NYSED had wrongfully disclosed confidential and inaccurate information concerning the Claimant's surrender of his teacher's certification" (id. at ¶ 6). Specifically, claimant alleges that NYSED disclosed to the National Association of State Directors of Teacher Education and Certification (NASDTEC) that claimant had been a party to an "action based upon sexual misconduct that did not result in a criminal conviction" (id. at ¶19) and that, as a result, claimant was " 'flagged' on NASDTEC's public database for attention by other school districts throughout the country considering [claimant] for employment" (id. at ¶ 20). Claimant alleges that this disclosure was false and violated the terms of the parties' Surrender Agreement (id. at ¶¶ 36, 37). Based upon these facts, claimant alleges causes of action for breach of contract (first cause of action asserted in the claim), defamation (second cause of action asserted in the claim) and rescission (third cause of action asserted in the claim).
In support of its dismissal motion, defendant contends that the defamation claim is barred by the one-year statute of limitations set forth in CPLR 215; that the breach of contract claim fails to state a cause of action because it is directly contradicted by the plain terms of the Surrender Agreement attached to the claim and incorporated by reference therein, and that this Court lacks subject matter jurisdiction over the cause of action for rescission.
It has been held that the statute of limitations, which applies as between citizens of the state, may provide a defense independent of the time limitations set forth in the Court of Claims Act. Noting the constitutional prohibition against the payment of claims against the State "which, as between citizens of the state, would be barred by lapse of time" (NY Const, art III, § 19), the Court in Trayer v State of New York (90 AD2d 263 [3d Dept 1982]) held that in addition to the time limitations contained in Court of Claims Act § 10 (3),those seeking to sue the State for intentional torts must also "comply with CPLR 215 (subd 3) or risk having their claim dismissed if a timely Statute of Limitations defense is raised" (id. at 268; see also Firth v State of New York, 184 Misc 2d 105, 110 [Ct Cl 2000], affd 287 AD2d 771 [3d Dept 2001], affd 98 NY2d 365 [2002]). Here, claimant asserts the claim accrued on February 6, 2013 when he first became aware that NYSED had disclosed "confidential and inaccurate information" concerning the surrender of his teacher's certification (defendant's Exhibit B, claim, ¶ 6). As a result, the defamation cause of action, included in the claim filed on September 29, 2014 and served on September 26, 2014, was clearly barred by the one-year Statute of Limitations (CPLR 215 [3]). No contrary arguments having been asserted in opposition to the motion, the claimant's defamation cause of action must be dismissed as time-barred.
When Trayer was decided, Court of Claims Act § 10 (3) governed claims for both intentional and unintentional conduct thereby raising the question whether an intentional tort claim, timely filed and served under Court of Claims Act § 10 (3), may nevertheless be barred by the one-year statute of limitations set forth in CPLR 215 (3). The Court held that it could, citing article III, § 19 of the NY Constitution.
Turning to claimant's breach of contract cause of action, defendant contends that the claimant's central allegation - that "[p]ursuant to the Surrender Agreement, the NYSED agreed not to disclose to anyone the nature of the allegations against Mr. Ballard that resulted in the Surrender Agreement" (defendant's Exhibit B, claim, ¶ 18) - is directly contradicted by the Surrender Agreement itself. In this regard, the Surrender Agreement provides as follows:
"5) Respondent understands that the Education Department will notify all New York State school districts as well as all licensing and/or credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teaching Education and Certification (NASDTEC) Educator Identification Clearinghouse and advise them as to the status of such certificate(s)" (Exhibit B, Surrender Agreement, ¶ 5).
In opposition to the motion, claimant contends that the allegation in the claim that defendant "agreed not to disclose to anyone the nature of the allegations against [him] that resulted in the Surrender Agreement" (Exhibit B, claim, ¶ 18), accepted as true for the purpose of the motion, states a breach of contract cause of action as it is not directly contradicted by the plain terms of the Surrender Agreement.
Nowhere in the Surrender Agreement, which contains a merger clause and prohibition against oral modifications, does defendant promise not to disclose the nature of the allegations brought against the claimant. To the contrary, the agreement clearly and unambiguously indicates that defendant will notify all New York State school districts as well as all licensing and/or credentialing agencies and jurisdictions who participate in NASDTEC as to the status of claimant's certification. Given the clear and unambiguous terms of the agreement, parole evidence is inadmissible to alter the terms of this contract (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Moreover, General Obligations Law § 15-301 (1) prohibits an executory oral modification of a written agreement which contains a provision to the effect that it cannot be changed orally (Rose v Spa Realty Assoc., 42 NY2d 338, 343 [1977]; Scher v Stendhal Gallery, Inc., 117 AD3d 146 [1st Dept 2014]; Phoenix Corp. v U.W. Marx, Inc., 64 AD3d 967 [3d Dept 2009]). The Surrender Agreement here includes such a clause, stating:
9) This written Surrender Agreement contains all the terms and conditions agreed upon by the parties hereto and no other agreement, oral or otherwise, regarding said allegations and charges shall be deemed to exist or to bind any of the parties hereto or to vary any of the terms contained therein" (Exhibit B, Surrender Agreement, ¶ 9).
Accordingly, claimant's allegation that defendant "agreed not to disclose to anyone the nature of the allegations against [him] that resulted in the Surrender Agreement" (defendant's Exhibit B, claim, ¶ 18) is inadmissible parole evidence which may not be used to alter or supplement the terms of the unambiguous Surrender Agreement. Inasmuch as the Surrender Agreement "utterly refutes" the claimant's contrary allegations regarding its terms, defendant established its defense as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see also Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822 [2d Dept 2015]; Matter of Oliner v Sovereign Bank, 123 AD3d 1041 [2d Dept 2014]; Kilmer v Miller, 96 AD3d 1133 [3d Dept 2012]). Dismissal pursuant to CPLR 3211 (a) (1) is therefore appropriate.
Lastly, claimant's third cause of action for rescission is an equitable remedy which may be invoked in the absence of an adequate remedy at law (Rudman v Cowles Communications, 30 NY2d 1 [1972]). Inasmuch as the jurisdiction of the Court of Claims is limited to actions primarily seeking money damages against the State in appropriation, contract or tort (Court of Claims Act § 9 [2]; Pasty v Duryea, 306 NY 413, 417 [1954]), the claimant's sole remaining cause of action for rescission must be dismissed (cf. Sarbro IX v State of N.Y. Off. of Gen. Servs., 229 AD2d 910 [4th Dept 1996]).
Accordingly, defendant's motion is granted and the claim is dismissed.
March 9, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated November 3, 2014;
Affirmation of Paul F. Cagino dated November 3, 2014 with exhibits;
Affirmation of Kevin K. McKain affirmed November 24, 2014.