Opinion
# 2011-032-040 Claim No. 119924 Motion No. M-80104 Cross-Motion No. CM-80175
12-20-2011
GULLY v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2011-032-040 Claimant(s): FRANCES T. GULLY Claimant short name: GULLY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119924 Motion number(s): M-80104 Cross-motion number(s): CM-80175 Judge: JUDITH A. HARD Claimant's attorney: Frances T. Gully, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Jessica Hall, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: December 20, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves this Court for an order dismissing the claim pursuant to CPLR 3211 (a)(2)(7) and (8) on the ground that the claim lacks both personal and subject matter jurisdiction and fails to state a cause of action. Claimant opposes the motion and cross-moves for an order pursuant to CPLR 3212(b) granting claimant summary judgment. For the reasons set forth below, this Court grants defendant's motion to dismiss and denies claimant's motion for summary judgment as moot.
The underlying claim alleges intentional infliction of emotional distress and abuse of process. The claim arises out of an employment matter dating back to 2001, when claimant was employed as on-site leasing agent for Feathered Nest, Inc. On April 30, 2001, following an alleged public outburst by claimant at work, claimant was warned by her employer, in writing, that her behavior was unacceptable and that a repeat occurrence could result in her termination. Claimant ceased reporting to work and on May 10, 2001, she wrote a letter to her employer in which she stated that she was left with no choice but to remove herself from employment. On or about March 22, 2002, claimant filed a claim for unemployment insurance benefits, indicating on her application, that she had been fired. As a result, she received $2,936.25 in benefits. Thereafter, the Department of Labor issued an initial determination disqualifying claimant from receiving benefits on the basis that she had voluntarily separated from employment without good cause, charging claimant with an overpayment in the amount of $2,936.25 in recoverable benefits, and reducing claimant's right to receive future benefits by 8 effective days on the basis that she made a willful misrepresentation to obtain benefits. A hearing was held, pursuant to claimant's request, and the initial determination of the Department of Labor was sustained by the Unemployment Insurance Appeal Board on or about January 9, 2003. The Appellate Division, Third Department, affirmed the Appeal Board's decision on June 10, 2004. The Court of Appeals denied claimant's motion for leave to appeal on December 16, 2004, and denied her subsequent motion for reargument or reconsideration on March 24, 2005.
In addition to the aforesaid legal proceedings, claimant wrote several letters to the State Inspector General's office in 2002, 2003 and 2004, requesting an investigation into the alleged illegalities of her former employer, Nancy Packes, who was a real estate broker and an attorney, and certain officials who allegedly used their positions to protect Ms. Packes. Thereafter, claimant filed a complaint against Ms. Packes with the Departmental Disciplinary Committee for the Supreme Court, Appellate Division, First Judicial Department. Her complaint was dismissed initially in 2006 and upon reconsideration (at claimant's request) in 2007.
Between January and March 2011, claimant wrote several letters to Governor Cuomo's office, stating that top officials had altered official documents, obstructed justice and covered up the fact that Ms. Packes had lied in writing to hinder a State investigation. She requested a meeting with him, voiced concerns about the Inspector General and other officials, and asked for an investigation into the corruption she had alleged. In addition, she requested that the Governor intervene and stay any collections of monies against her by the Department of Labor. Claimant was told that a meeting with the Governor could not be arranged but that claimant could contact the State Inspector General's office if she wanted to make a complaint or request an investigation.
On June 3, 2011, claimant filed this claim alleging that the State of New York and Governor Cuomo have failed to properly address and/or investigate various acts of alleged corruption occurring at the Department of Labor, the State Inspector General's Office, and the Department of State. The claim sets forth two causes of action: the first is for intentional infliction of emotional distress based upon claimant's interactions with the officers/employees of the Governor's Office; the second alleges a denial of due process and intentional infliction of emotional distress, based upon (1) the Department of Labor and the Department of State allegedly covering up the illegalities of claimant's former employer, Nancy Packes, and (2) the Department of Labor's repeated requests for claimant to repay the amount of unemployment insurance benefits which had been paid to her.
In lieu of serving an answer, defendant filed this motion seeking to dismiss the claim. Defendant alleges that the Court lacks personal jurisdiction over defendant because the claim fails to set forth an actual accrual date and further because neither a claim nor a notice of intention to file a claim were served upon the Office of the Attorney General within 90 days of any accrual date which can be gathered from the facts provided. Defendant argues that the latest possible accrual date that can be gleamed from the claim is December 16, 2004, the date the Court of Appeals denied claimant's request for leave to appeal, because claimant's damages, if any, were readily ascertainable at that time. Defendant further argues that any subsequent actions or endeavors taken by claimant were merely complaints and allegations in an effort to get someone/anyone to review the previous decisions made by the Department of Labor, the Department of State and the New York Court system. In addition, defendant argues that even if the claim was timely, it still must be dismissed because it fails to state a cause of action. The Court agrees.
LAW
The Court of Claims is a Court of limited jurisdiction. It has jurisdiction only over claims for money damages in which the State, or certain authorities, is properly a party before it (Court of Claims Act §9).
Pursuant to the Court of Claims Act, a claim shall state, in pertinent part, the time when and place where the claim arose, as well as the nature of the claim (Court of Claims Act § 11 [b]). Moreover, whether characterized as a claim for an intentional tort or an unintentional tort, the time period for serving the claim upon the Attorney General is 90 days from the date of accrual, unless the claimant, within said time, serves the Attorney General with a written notice of intention to file the claim, in which event the claim would need to be filed and served upon the Attorney General within one year after accrual of the claim for an intentional tort (Court of Claims Act § 10[3-b]) or two years after accrual for an unintentional tort (Court of Claims Act §10 [3]). Claims and notices of intention to file a claim must be served upon the Attorney General by personal service or certified mail, return receipt requested (Court of Claims Act §11[a]).
Compliance with the service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).
ANALYSIS
In the present case, claimant alleges that the accrual date of her claim is March 12, 2011, the date she received a letter from the Governor's Director of Scheduling, Matthew Nelson, denying her request for an appointment with the Governor's office to show them evidence of corruption she alleges has been occurring in offices the Governor oversees. However, the matters claimant wished to discuss with the Governor regarded issues she had with her former employer in 2001, which were the subject of litigation between 2002 and 2004. Examples of the same are set forth in the papers claimant submitted in opposition to defendant's motion and in support of her cross-motion. Specifically, claimant asks the Court to review part of a transcript from a 2002 hearing, stating that certain pages were missing and that the missing pages would have proven her case. In addition, she states that she was defrauded of $700.00 in a leasing contest that she won but that paperwork was altered to push the assistant manager slightly above her. Claimant also states she was defrauded of commissions of up to hundreds of thousands of dollars that went to unlicensed men her employer hired, and that her employer committed perjury, which included falsely accusing claimant of having committed a public outburst. Claimant states that she has sought justice from the State Inspector General's office and every agency, official and office set up to protect the public since 2001, but that they continuously rubberstamp decisions or claim it was not their job, all allegedly to cover up illegalities of New York State officials who covered up the crimes of her former employer, Nancy Packes. As claimant's issues with her former employer, including the termination of claimant's unemployment insurance benefits and the requirement that she repay the benefits which were overpaid, were addressed and disposed of on December 16, 2004, the date the Court of Appeals denied claimant's motion for leave to appeal the decision of the Third Department, claimant's filing and service of a claim based upon the same issues in June 2011 is untimely and dismissal of the claim is warranted.
However, even if the subject claim was timely, it would still be dismissed for failure to state a cause of action. To the extent claimant alleges causes of action based upon the intentional infliction of emotional distress, they are denied since public policy prohibits recovery against the State for the same (see Augat v State of New York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Brown v State of New York, 125 AD2d 750 [1986], lv dismissed 70 NY2d 747 [1987]). To the extent claimant alleges a violation of her due process rights, it is denied as claimant has failed to set forth a viable cause of action upon which relief in this Court can be granted.
Based upon the foregoing, defendant's motion to dismiss is granted and Claim No. 119924 is dismissed. Claimant's cross-motion for summary judgment is denied as moot.
December 20, 2011
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims