Opinion
# 2019-040-034 Claim No. 132283 Motion No. M-93324
04-18-2019
JAMES F. KELLY v. THE STATE OF NEW YORK
James F. Kelly, Pro Se LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
State's pre-Answer Motion to dismiss for lack of subject matter jurisdiction and failure to state a cause of action granted.
Case information
| UID: | 2019-040-034 |
| Claimant(s): | JAMES F. KELLY |
| Claimant short name: | KELLY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132283 |
| Motion number(s): | M-93324 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | James F. Kelly, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 18, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer Motion to dismiss the Claim pursuant to CPLR 3211(a)(2) for lack of subject matter jurisdiction and 3211(a)(7) for failure to state a cause of action is granted.
This pro se Claim was filed in the office of the Clerk of the Court on November 19, 2018. The Claim is 22 pages in length and contains 79 numbered paragraphs. The Claim alleges that: Claimant is a part-time police officer in two municipalities; he was born in January 1964; on November 19, 2016, he was denied the opportunity to obtain a permanent police officer/deputy sheriff position when he was determined to be ineligible to take the open competitive Civil Service examination on account of his age (Claim, ¶¶ 2, 23, 25, 27, 29). Claimant states he was determined to be ineligible under Civil Service Law (hereinafter, "CSL") § 58, which makes anyone more than 35 years of age as of the date when the applicant takes the written exam ineligible for permanent appointment in a competitive class of the civil service as a police officer (id.). The Claim asserts seven "Claims for Relief" or causes of action. Four are based on State law, two on Federal law, and one appears to be a combination of State and Federal law.
The first cause of action alleges Defendant violated the Equal Protection Clause of the 14th Amendment to the United States Constitution, which Claimant asserts is enforceable pursuant to 42 USC § 1983. The second cause of action alleges a violation of the Age Discrimination in Employment Act of 1967 (hereinafter, "ADEA") (29 USC § 623). The third and fourth causes of action allege violations of the New York State Constitution, Article I, ¶ 11, and Article V, § 7, respectively. The fifth cause of action alleges age discrimination in violation of Human Rights Law (hereinafter, "HRL") § 291 and § 296(1). The sixth cause of action alleges a violation of CSL § 54, regarding age discrimination. The seventh cause of action alleges disparate treatment based upon age. Claimant seeks monetary damages, as well as injunctive relief.
Defendant asserts that the Claim fails to state a cause of action and that certain relief Claimant requests is beyond this Court's jurisdiction.
Regarding Claimant's first cause of action asserting deprivations under the 14th Amendment to the Federal Constitution, no action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). In addition, the United States Supreme Court has held that no action can be maintained against the State under 42 USC § 1983 in State court because neither the State nor its officials acting in their official capacities are "persons" within the meaning of the statute (Will v Michigan Dept. of State Police, 491 US 58, 63-66, 71 [1989]; see Brown v State of New York, 89 NY2d 172, 184-185 [1996]). To the extent that Claimant asserts Federal constitutional violations, his remedy lies elsewhere. Thus, the first cause of action is dismissed.
CSL § 58 reads, in pertinent part:
§ 58. Requirements for provisional or permanent appointment of certain police officers
1. Notwithstanding any other provision of this law or any general, special or local law to the contrary, no person shall be eligible for provisional or permanent appointment in the competitive class of the civil service as a police officer of the department of environmental conservation or any police force or police department of any county, city, town, village, housing authority or police district unless he or she shall satisfy the following basic requirements:
(a) he or she is not less than twenty years of age as of the date of appointment nor more than thirty-five years of age as of the date when the applicant takes the written examination, provided that the maximum age requirement of thirty-five years of age as set forth in this paragraph shall not apply to eligible lists finalized pursuant to an examination administered prior to May thirty-first, nineteen hundred ninety-nine or a police officer in the department of environmental conservation …
This age limitation has been upheld on several occasions and has been found to fall within the ADEA's law enforcement exception (Feldman v Nassau County, 349 F Supp 2d 528 [EDNY 2004], affd 434 F 3d 177 [2d Cir 2006]; Ruderman v Police Dept. of City of New York, 857 F Supp 326 [SDNY 1994]; Matter of Faraguna v Nassau County Civ. Serv. Commn., 140 AD2d 341 [2d Dept 1988]). In Faraguna, the Petitioner had been a New York City Police Officer for approximately three years at the time he sought employment with the Nassau County Police Department. The Second Department noted there that, although CSL § 58(4)(a) provides an exception to the age requirement when an individual resigns from one police department in order to be appointed to another police force, the statute also allows the examining entity to impose a more restrictive age requirement, which disqualified the applicant. Here, however, Claimant was disqualified from taking the exam pursuant to CSL § 58(1)(a) (see Ex. E attached to Claim). Therefore, the Court finds that Claimant has failed to state a cause of action for age discrimination pursuant to the ADEA. Thus, the second cause of action is dismissed.
New York courts have held that age requirements are constitutional and do not violate CSL § 54 (Matter of Figueroa v Bronstein, 38 NY2d 533 [1976]; Timerman v Bence, 176 AD2d 1220 [4th Dept 1991]). In addition, the courts have held that the prohibition of HRL §§ 291 and 296(1) and CSL § 54 are not applicable to CSL § 58 (Walter v City of New York Police Dept., 244 AD2d 205 [1st Dept 1997]; Knapp v Monroe County Civ. Serv. Commn., 77 AD2d 817 [4th Dept 1980]). The Court finds that Claimant has failed to state a cause of action for violation of HRL §§ 291 and 296(1), as well as CSL § 54. Therefore, causes of action five and six are also dismissed.
In Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals "recognized that, when certain requirements are met, a violation of the [New York State] Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). In Martinez v City of Schenectady (supra), however, the Court of Appeals made it clear that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra at 1181). Where an adequate remedy could be provided, however, " 'a constitutional tort claim … is [not] necessary to effectuate the purposes of the State constitutional protections … [invoked] nor appropriate to ensure full realization of [claimants'] rights' " (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, supra at 83).
In the present case, recognition of the State constitutional causes of action are neither necessary nor appropriate to ensure the full realization of Claimant's rights, because the alleged wrongs could have been redressed by an alternative remedy, namely, either in a Federal Court action asserting violations of the Federal Constitution, or in an action pursuant to CPLR Article 78 in Supreme Court challenging the constitutionality of CSL § 58. Thus, the third and fourth causes of action alleging violations of Claimant's State constitutional rights are dismissed.
The seventh cause of action alleging disparate treatment based upon age is just a restatement of the previous causes of action asserting violations of Federal and State statutes. For the reasons set forth above, the seventh cause of action is dismissed.
The Court of Claims has jurisdiction to hear claims for money damages against the State, its agencies and certain public authorities (NY Const art VI; Court of Claims Act § 9).
"As a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005], citing to Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]; Psaty v Duryea, 306 NY 413, 416 [1954]). Consequently, this Court is without power to issue an injunction or a declaratory judgment amending CSL § 58 (see Matter of Milner v New York State Higher Educ. Servs. Corp., 4 Misc 3d 221, 225 [Ct Cl 2004], affd 24 AD3d 977 [3d Dept 2005]).
Therefore, based upon the foregoing, the State's Motion to dismiss the Claim is granted, and it is dismissed. The Court notes that this is now the second Claim that Claimant has brought whereby he has challenged CSL § 58,essentially asserting the same causes of action as a result of not being allowed to take two separate examinations for a full-time position as a police officer (see Kelly v State of New York, UID No. 2015-040-055 [Ct Cl, McCarthy, J., Nov. 10, 2015]).
April 18, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's pre-Answer Motions to dismiss: Papers Numbered Notice of Motion, Affirmation in Support, and Exhibits Attached 1 Claimant's Affirmation in Opposition 2 Filed Papers: Claim