Opinion
No. 8448/11.
2013-06-4
Gail HOUSTON, Plaintiff, v. Lowell COLEMAN, Defendant.
Plaintiff Gail Houston was self-represented. Defendant Lowell Coleman was represented by Asad Rizvi, Esq. of the Corporation Counsel of the City of New York.
Plaintiff Gail Houston was self-represented. Defendant Lowell Coleman was represented by Asad Rizvi, Esq. of the Corporation Counsel of the City of New York.
JACK M. BATTAGLIA, J.
The Amended Complaint of plaintiff Gail Houston is comprised of ten numbered paragraphs, and seeks monetary damages from defendant Lowell Coleman for defamation, alleging that he made “horrific,” “harmful,” and “untrue” malicious statements about her. (There is also a Complaint, bearing the same date, April 1, 2011, and identical allegations, but it was not signed by Plaintiff.) Defendant answered, denying most of Plaintiff's allegations, and alleging seven affirmative defenses. Plaintiff filed a Note of Issue on October 31, 2012.
Defendant moves for an order, pursuant to CPLR 3212, dismissing the Amended Complaint on four grounds: “(1) plaintiff failed to file a notice of claim with the City of New York Office of the Comptroller and is now time-bared from seeking leave of Court to file a late notice of claim pursuant to Education Law § 3213, (2) plaintiff is precluded from litigating any claims against [New York City Department of Education] or its' [ sic ] employees that arose on or before January 6, 2010, (3) plaintiff failed to comply with the special pleading requirement pursuant to CPLR 3016(a), and (4) plaintiff has failed to establish a claim of common law defamation as a matter of law.” ( See notice of motion for summary judgment dated December 31, 2012.)
“A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact.” (Guiffrida v. Citibank Corp., 100 N.Y.2d 72, 81 [2003];see alsoCPLR 3212; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986].) “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” (Guiffrida v. Citibank Corp., 100 N.Y.2d at 81.)
Although not determinative of Defendant's motion, some history of Plaintiff's claim is helpful as context. (Although not fully supported by evidence in admissible form in Defendant's papers, these facts either appear in Plaintiff's opposition, or are not challenged or contradicted by her.) From October 2005 until May 2007, Ms. Houston was employed by the New York City Department of Education as a paraprofessional at Public School 181 in Brooklyn, during which period Mr. Coleman was acting principal or principal. Effective May 10, 2007, Ms. Houston's employment was terminated by Mr. Coleman, based upon findings of corporal punishment and verbal abuse of students.
Ms. Houston challenged her termination in two forums. She sought redress through the grievance and arbitration processes established pursuant to the applicable collective bargaining agreement, and she commenced an action in federal court, alleging race, gender and disability discrimination, sexual harassment and retaliation in violation of the Americans with Disabilities Act and Title VII. The federal court action was settled with a Stipulation and Order of Settlement and Discontinuance and a Limited General Release, both dated January 6, 2010, which expressly permitted continuance of the grievance and arbitration processes. Ms. Houston received $46,000 in accordance with the settlement.
Those grievance and arbitration processes were concluded with an award dated April 12, 2010, with which Ms. Houston's grievance was sustained in part and denied in part. Specifically, the arbitrator concluded that the Department had violated the collective bargaining agreement by terminating Ms. Houston, but that the Department had “good and sufficient reason” to discipline her. She was ordered to be reinstated “with no back pay” and a record of a 60–day disciplinary suspension. Her reinstatement was “subject to receiving clearance from Medical Bureau.”
The events from April through August 2010 are not clear. But on September 3, 2010, Mr. Coleman wrote to HR Connect Medical Administration, requesting a medical evaluation of Ms. Houston, stating, among the reasons for the request, that Ms. Houston had been “consistently found not fit' during the past three years,” engaged in “bizarre behavior,” and been subject to several disciplinary actions. The letter was also signed as “approved” by Superintendent Rhonda Taylor.
Later in September 2010, Ms. Houston was assigned to Intermediate School 246, where she served for three months, and then was assigned to Middle School 484, where she is apparently still employed.
Ms. Houston's Amended Complaint does not include “the particular words complained of,” as required by CPLR 3016(a). A determination of Defendant's motion on that ground, however, would not serve either party's interest, because it is sufficiently clear that, even were this pleading deficiency cured, the action could not proceed.
“Service of a notice of claim was a condition precedent to the commencement of the action against the defendant pursuant to Education Law § 3813.” ( See DeRise v. Kreinik, 10 AD3d 381, 381–82 [2d Dept 2004]; see alsoEducation Law § 3813[2]; General Municipal Law § 50–e [1][a], [b]; General Municipal Law § 50–k; DeNaro v. Rosalia, 59 AD3d 584, 587 [2d Dept 2009]; Gondal v. New York City Dept. of Educ., 19 AD3d 141, 141–42 [1st Dept 2005]; Smith v. Collins, 221 A.D.2d 518, 518–19 [2d Dept 1995]; Agins v.. Darmstadter, 153 A.D.2d 600, 601 [2d Dept 1989]; Cioffi v. Giannone, 56 A.D.2d 620, 620 [1st Dept 1977].)
The notice of claim was required to be served within 90 days after the claim arose. ( SeeGeneral Municipal Law § 50–e [1][a] .) Although the Amended Complaint seeks damages from May 10, 2007, it seems clear that, by reason of the settlement and release in the federal court action, Ms. Houston would be precluded from pursuing damages for any claim arising before January 6, 2010. The only other relevant date found in the Amended Complaint is September 7, 2010, the date Ms. Houston returned to P.S. 181, when she “was handed papers from principal Lowell Coleman stating, [ sic ] she was to return to medical with the same information she fought in court” ( see amended complaint ¶ 5.) There are further allegations of “horrific statements in a letter to the new principal,” i.e., the principal at I.S. 246 ( see id. ¶ 6), and of “harmful statements to Ms. Houston's Board of Education doctor and new employer” ( see id. ¶ 7), but no date[s] appear.
Defendant asserts that, at her examination before trial Ms. Houston testified that Mr. Coleman's September 3, 2010 letter constituted the latest alleged act of defamation ( see affirmation of Asad Rizvi in support of defendant's motion for summary judgment ¶ 77), but Defendant provides only an incomplete copy of the transcript, which does not include the page cited for the testimony. But in her opposition to this motion, Ms. Houston states that “[l]astly,” Mr. Coleman sent the September 3, 2010 letter “to two of [her] new employers” ( see memorandum of law in support of a trial for plaintiff: against summary judgment [“plaintiff's opposition”] at 8.) She also states, “I just don't know what else did he say or write which I have not seen or heard as of yet” ( see id.), but Ms. Houston has had disclosure, including an examination before trial of Mr. Coleman, and has filed her note of issue.
Most significantly, in the notice of claim that Ms. Houston eventually filed, she states the “Date of Incident” as September 7, 2010, and no other date appears in the notice. Her notice of claim, therefore, was required to have been served no later than December 7, 2010. In support of his motion, Defendant submits an affidavit of a paralegal in the Labor and Employment Law Division of the Office of the Corporation Counsel of the City of New York, who describes her search of the computerized database maintained by the Comptroller's Office to which Corporation Counsel has access, and reports that, as of December 31, 2012, Plaintiff had not filed her notice of claim.
With her opposition, Plaintiff submits a copy of a completed notice of claim form that she filed electronically at the Comptroller's website. The form is not dated, and Ms. Houston asserts no date, but the accompanying Acknowledgment of Claim is dated January 11, 2013. Ms. Houston has this to say about her filing of the notice of clam:
“PLAINTIFF HAS COMPLIED WITH REGULATIONS TO FILE NOTICE OF CLAIM Exhibit No No. 1AA is a copy of the original Notice of Claim I filled out and sent to the Comptroller's office. It was later found the Comptroller never received my document. I personally sent the document myself. The Comptroller's office informed me they never received my application of filling [ sic ]. I had actually sent the document again sometime later after the defendant's lawyer stated there was not a notice of claim filled [ sic ] by myself. Again I sent a notice of claim to the comptroller's office. On the actual website there is a button to press and send which I used each time. The last time I tried to send the document I noticed you had to save the file the grab it from the file inside your own computer. My Notice of claim number is 2013P1001027.” ( See plaintiff's opposition at 16.)
Ms. Houston does not provide the date of her earlier unsuccessful attempt(s) at electronic filing, which, based on her statement, were the product of her own error.
In a city with a population of over one million, service of a notice of claim “by electronic means in a form and manner prescribed by such city” is expressly authorized by statute, with “[s]ervice of the notice ... complete upon successful transmission of the notice as indicated by an electronic receipt provided by such city, which shall transmit an electronic receipt number to the claimant forthwith.” ( SeeGeneral Municipal Law § 50–e [3] [a], [e].)
The statute addresses electronic filing also in the provision permitting application for leave to serve a late notice of claim. Among the factors the court shall consider in exercising its discretion on such an application:
“if service of the notice of claim is attempted by electronic means ..., whether the delay in serving the notice of claim was based upon the failure of the computer system of the city or the claimant or the attorney representing the claimant; that such claimant or attorney, as the case may be, submitted evidence or proof as is reasonable showing that (i) the submission of the claim was attempted to be electronically made in a timely manner and would have been completed but for the failure of the computer system utilized by the sender or recipient, and (ii) that upon becoming aware of the failure of such system and the failure of the city to receive such submission, the claimant or attorney had insufficient time to make such claim within the permitted time period in a manner as otherwise prescribed by law.” ( SeeGeneral Municipal Law § 50–e [5].)
It seems clear, therefore, that even where an application for leave to serve a late notice of claim is timely made ( seeEducation Law § 3813[2–a]; General Municipal Law § 50–i), an unsuccessful attempt to file electronically can serve as the basis for an exercise of discretion in granting leave for late filing only where the attempt was otherwise timely, and the failure to deliver the notice electronically is the result of computer failure and not user error. In the latter respect, the provisions as to electronic filing are consistent with law as to unsuccessful service by traditional means ( see Jones v. City of New York, 300 A.D.2d 359, 359–60 [2d Dept 2002].)
Here, Ms. Houston has not sought leave to serve a late notice of claim by either petition or motion ( see Matter of Lewin v. County of Suffolk, 239 A.D.2d 345, 346 [2d Dept 1997] ), nor would have such an application itself been successful, since more than one year and ninety days has passed since the claim arose, and the Court “lack[s] authority to grant the plaintiff[ ] leave to serve a late notice of claim” ( seeEducation Law § 3813[2–a]; General Municipal Law § 50–i, Hwango v. Nobles, 62 AD3d 949, 950–51 [2d Dept 2009].)
Perhaps most importantly, Ms. Houston does not meet the requirements expressly set forth in the statute for allowing late service after an unsuccessful attempt to file electronically. She provides no evidence of a timely attempt to file electronically, and no evidence, or even allegation, of system failure. “Statutory requirements conditioning suit against a governmental agency must be strictly construed ..., even where the Department had actual knowledge of the claim or failed to demonstrate actual prejudice.” (Varsity Tr., Inc. v. Board of Educ. of City of NY, 5 NY3d 532, 536 [2005] [internal quotation marks, brackets, citations, and footnote omitted].)
Since Defendant has established prima facie its entitlement to judgment as a matter of law, and Plaintiff has failed to raise a triable issue, the motion must be granted.
Defendant's motion is granted; the Amended Complaint is dismissed; Defendant may enter judgment accordingly.