Opinion
Index 2019/4349
08-03-2020
BERN1CE CURRY-MALCOLM Petitioner-Plaintiff, v. NEW YORK STATE TEACHERS' RETIREMENT SYSTEM Respondent-Defendant RUSH-HENRIETTA CENTRAL SCHOOL DISTRICT; HONEOYE FALLS-LIMA CENTRAL SCHOOL DISTRICT; BROWN HUTCHINSON, LLP ATTORNEYS AT LAW; ROCHESTER CITY SCHOOL DISTRICT; and ASSOCIATION OF SUPERVISORS & ADMINISTRATORS OF ROCHESTER (ASAR)"Necessary Joiner Parties"
For Petitioner-Plaintiff: Bernice Curry-Malcolm, pro se. For NYS Teachers' Retirement System: Ted O'Brien, Esq. For Rush-Henrietta CSD: Mi]es G. Lawlor, Esq. For Honeoye-Falts Lima CSD: Miles G. Lawlor, Esq. For Brown Hutchinson, LLP: Michael Cobbs, Esq. For Rochester CSD: Alison K.L. Moyer, Esq. For Association of Supervisors (ASAR): Jennifer L. Carlson, Esq.
Unpublished Opinion
For Petitioner-Plaintiff: Bernice Curry-Malcolm, pro se.
For NYS Teachers' Retirement System: Ted O'Brien, Esq.
For Rush-Henrietta CSD: Mi]es G. Lawlor, Esq.
For Honeoye-Falts Lima CSD: Miles G. Lawlor, Esq.
For Brown Hutchinson, LLP: Michael Cobbs, Esq.
For Rochester CSD: Alison K.L. Moyer, Esq.
For Association of Supervisors (ASAR): Jennifer L. Carlson, Esq.
DECISION ORDER & JUDGMENT
Hon. Gail A. Donofrio Justice.
Pro se petitioner Bernice Curry-Malcolm commenced an Article 78 proceeding challenging the June 26, 2019 final determination of respondent New York State Teachers' Retirement System (NYSTRS), which calculated her retirement service credit and earnings as a result of her employment with the above-captioned "Necessary Joiner Parties" school districts Honeoye-Falls Lima Central School District (HFL CSD), Rush-Henrietta Central School District (R-H CSD), and Rochester City School District (RCSD). All of the Respondents/''Necessary Joiner Parties" (hereinafter respondents) made pre-answer motions to dismiss pursuant to CPLR § 3211, and petitioner then made a motion for a default judgment against all respondents.
The petition/complaint asserts four causes of action. The first cause of action asserts the June 26, 2019 final determination of the NYSTRS was an abuse of discretion, arbitrary, capricious and done in bad faith. The second cause of action asserts the NYSTRS does not have "jurisdiction" over a Settlement Agreement between the petitioner and HFL CSD. The third cause of action asserts the final determination of the NYSTRS violated her constitutional rights. The fourth cause of action asserts the NYSTRS "unlawfully withheld evidence" from its final determination to favor HFL CSD and RCSD.
As outlined above, the four causes of action in the petition/complaint are directed only against NYSTRS and all relate to the NYSTRS's calculation and/or determination of petitioner's salary and service credits. Stated differently, no causes of action are asserted against HFL CSD, R-H CSD, RCSD, Brown Hutchinson, LLP, Attorneys at Law (Brown Hutchinson), or the Association of Supervisors & Administrators of Rochester (ASAR), and instead, petitioner has named them as "Necessary Joiner Parties." Indeed, the petition/complaint is devoid of any allegations of involvement by or wrongdoing against R-H CSD, Brown Hutchinson or ASAR regarding the calculation and/or determination of petitioner's salary and service credits. Nor does the petition/complaint allege that any of the school district defendants or ASAR or Brown Hutchinson will be impacted by any reversal of the June 26, 2019 determination made by NYSTRS, The petition/complaint also does not allege that any modification of the June 26, 2019 determination cannot be made without joining the school districts or ASAR or Brown Hutchinson as respondents/defendants (see CPLR § 1001).
Petitioner also generally asserts in her petition/complaint that the HFL CSD terminated her without cause in 2008 and/or discriminated and/or retaliated against her, and that the RCSD, inter alia, unlawfully terminated her employment and breached a contract and/or Collective Bargaining Agreement. However, these assertions are not related to the instant Article 78 proceeding challenging the June 26, 2019 service credit determination made by the NYSTRS. More importantly, though, petitioner's discrimination and retaliation claims and breach of contract claims have already been extensively litigated in Federal and State venues and were resolved in favor of HFL CSD and the RCSD,
For a list of the actions/proceedings Bemice Curry-Malcolm has brought against HFL CSD entities and employees, see the Decision and Order of U.S. District Court Judge David Larimer in Malcolm v Honeoye Falls-Lima Central School District, 278 F.Supp.3d 677 (WDNY 20)7). In addition, a September 14, 2010 Decision and Order from the U.S. District Court for the Western District of New York permanently enjoined petitioner from filing further pro se actions in Federal Court against the HFL CSD without seeking leave of court (see Malcolm v Board of Education of the Honeoye Falls-Lima Central School District, 737 F.Supp.2d 117 [WDNY 2010]). For a list of the actions/proceedings Bemice Curry-Malcolm has brought against the RCSD entities and employees and/or ASAR, see the Affirmation of Alison M.K. Moycr, Esq., dated November 19, 2019, with exhibits. In addition, petitioner has been permanently enjoined from commencing any further pro se actions in Federal Court against the RCSD, any RSCD employee, the ASAR, or any ASAR representatives or members arising out of her employment with the RSCD without seeking leave of court (see Malcolm v ASAR et at., 388 F.Supp.3d 242 [WDNY 2019]).
The petition/complaint also does not allege that petitioner served a notice of claim against any of the school districts prior to commencing this action, which is a condition precedent to commencing an action against a school district (School Aid Specialists, LLC v Board of Education of Warwick Valley Central School District, 130 A.D.3d 1006 [2d Dept 2015]; see also McGovern v Mt. Pleasant Central School District, 114 A.D.3d 795 [2d Depl 2014], aff'd 25 N.Y.3d 1051 [2015]). Nor docs the petition/complaint allege compliance with notice of claim and pleading obligations arising under New York Education Law § 3813, which is fatal to her claims against the school districts (Parochial Bus Systems, Inc. v Board of Education of the City of New York, 60 N.Y.2d 539[1983]).
The WHEREFORE clause in the petition/complaint asks the Court to award various relief in favor of petitioner and against the three named school districts (i, e., restore her service credits, pay her earnings, vacation and sick time, etc.) and a judgment in her favor for the value of lost employment benefits, service credits and earnings in an amount to be determined by the Court, but not less than one million dollars. However, as noted above, a reading of the entire petition/complaint reveals that petitioner's complaints are directed against the NYSTRS and arise from the June 26, 2019 final determination of the NYSTRS that calculated her retirement service credit and earnings. Moreover, as set forth above, respondents HFL CSD, R-H CSD, RCSD, ASAR and Brown Hutchinson have demonstrated that the petition/complaint fails to state a cause of action and/or otherwise has no merit as against them. Accordingly, the pre-answer motions to dismiss the petition/complaint brought by HFL CSD, R-H CSD, RCSD, ASAR and Brown Hutchinson are granted, and petitioner's Notice of Motion to Strike and For Default Judgment against these respondents is denied.
The pre-answer motion to dismiss the petition/complaint brought by NYSTRS cites to CPLR §7804(f) and argues dismissal based on lack of personal jurisdiction because the Notice of Petition served on the Attorney General did not include a date by which the petition was made returnable. NYSTRS cites to some older case law in support of its motion. However, in light of the recent amendment to CPLR § 2001 and subsequent case law, and because NYSTRS does not argue that it was prejudiced or did not have adequate notice to respond as a result of the omission of the return date, NYSTR5's pre-answer motion to dismiss the petition/complaint based on lack of personal jurisdiction is denied (Bender v Lancaster Central Scool District, 155 A.D.3d 1590 [4th Dept 2017]; Oneida Public Library District v Town Board of the Town of Verona, 153 A.D.3d 127 [3d Dept 2017]), As a result, NYSTRS shall have 20 days from service of Notice of Entry of this Decision, Order & Judgment to file and serve an Answer and other supporting documents, if any, to the petition/complaint. Accordingly, petitioner's Notice of Motion to Strike and For Default Judgment against NYSTRS is denied.
NOW, upon reading and considering the "Summons, Petition and Verified Complaint" and "Notice of Petition, Summons and Verified Complaint," both dated October 22, 2019, with exhibits; "Notice of Motion to Strike and For Default Judgment Against All Respondents," dated December 4, 2019; "Plaintiff/Petitioner's Declaration in Support of Motion to Strike and For Default Judgment Against All Respondents," dated December 4, 2019, with exhibits; and Plaintiff/Petitioner's Memorandum of Law, dated December 4, 2019;
The Notice of Motion of HFL CSD, dated November 13, 2019; Attorney Affirmation of Miles G. Lawlor, Esq., dated November 13, 2019, with exhibits; the Affidavit of Dr. Bruce Capron, dated November 13, 2019; Memorandum of Law, dated November 13, 2019; and the Attorney Reply Affirmation of Miles G. Lawlor, Esq., dated February 18, 2020;
The Notice of Motion of R-H CSD, dated November 13, 2019; Attorney Affirmation of Miles G. Lawlor, Esq., dated November 13, 2019, with exhibits; Affidavit of Dr. Patrick McCue, dated November 12, 2019; Memorandum of Law, dated November 13, 2019; and Attorney Reply Affirmation of Miles G. Lawlor, Esq., dated February 18, 2020;
The Notice of Cross-Motion of RCSD, dated November 19, 2019; and Attorney Affirmation of Alison M.K. Mover, Esq., dated November 19, 2019, with exhibits;
The Notice of Motion of ASAR, dated November 25, 2019; Attorney Affirmation of Jennifer L. Carlson, Esq., dated November 25, 2019, with exhibits; and Memorandum of Law, dated November 25, 2019;
Notice of Motion of NYSTRS, dated December 9, 2019; Attorney Affirmation of Ted O'Brien, Esq., dated December 9, 2019; and Memorandum of Law, dated December 9, 2019; and
Notice of Motion of Brown Hutchinson, dated March 18, 2020 [sic] but filed on March 10, 2020; and Attorney Affirmation of Michael Cobbs, Esq., dated March 18, 2020 [sic], with exhibits;
AND, after due deliberation and deciding this matter on the aforementioned papers, and consistent with this Decision, Order & Judgment, it is hereby
ORDERED and ADJUDGED, that the pre-answer motions to dismiss the petition/complaint brought by respondents HFL CSD, R-H CSD, RCSD, ASAR and Brown Hutchinson are GRANTED; and it is further
ORDERED and ADJUDGED, that the pre-answer motion to dismiss the petition/complaint brought by respondent NYSTRS is DENIED; and it is further
ORDERED and ADJUDGED, that NYSTRS shall have 20 days from service of Notice of Entry of this Decision, Order & Judgment to serve an Answer and other supporting documents, if any, to the petition/complaint; and it is further
ORDERED and ADJUDGED, that petitioner's "Motion to Strike and for a Default Judgment Against All Respondents" is DENIED,