Opinion
# 2017-053-535 Claim No. 126896 Motion No. M-88482 Motion No. M-88484
06-30-2017
CAROL J. KOBRIN v. THE STATE OF NEW YORK
HOGAN WILLIG, PLLC BY: Diane R. Tiveron, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
Claimant alleges that she was wrongfully terminated in violation of a written employment agreement with SUNY at Buffalo. Claimant's motion for summary judgment is denied and defendant's motion for summary judgment is granted and the claim is dismissed. The Court finds that claimant's appointment letter was not enforceable as it was drafted by claimant after she retired from State employment and was receiving a pension and benefits, the letter had not been approved by or a waiver received from the President of SUNY at Buffalo, and was in violation of the Policies of the Board of Trustees and NYS Civil Service Retirement Law.
Case information
| UID: | 2017-053-535 |
| Claimant(s): | CAROL J. KOBRIN |
| Claimant short name: | KOBRIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126896 |
| Motion number(s): | M-88482, M-88484 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | HOGAN WILLIG, PLLC BY: Diane R. Tiveron, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 30, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Carol J. Kobrin alleges in claim no. 126896 that defendant State of New York wrongfully terminated her in violation of a written employment agreement (Defendant's Exhibit A). Pursuant to the alleged employment agreement, claimant was appointed Chief of Staff to the Vice President for Health Services at the State University of New York at Buffalo (SUNY at Buffalo) for a term of five years, from November 30, 2010 through November 29, 2015 (Defendant's Exhibit K). Defendant moves for summary judgment dismissing the claim (Motion No. M-88482). Claimant opposes defendant's motion and moves for summary judgment (Motion No. M-88484). Defendant opposes claimant's motion.
Normally, claimant's motion would be given a cross motion number. The motions apparently crossed in the mail and, thus, both were given motion numbers.
Procedural History
Claimant filed claim no. 120337, her first claim for breach of contract, on September 12, 2011 (Claimant's Exhibit A). In her first claim, claimant named both SUNY at Buffalo and the University at Buffalo Foundation Activities, Inc. (UB Foundation) as defendants. An answer to this claim was filed on October 27, 2011 (Claimant's Exhibit B). The first claim was discontinued as against UB Foundation as UB Foundation is a not-for-profit corporation separate and apart from the State of New York over which this Court does not have jurisdiction. On September 2, 2014, defendant filed a motion for summary judgment to dismiss claim no. 120337 as against the State as the remaining defendant. By decision and order dated April 21, 2015 and filed on July 6, 2015 (Claimant's Exhibit F), the Hon. Michael E. Hudson dismissed claim no. 120337 as it was jurisdictionally defective because it failed to set forth a total sum claimed as required by Court of Claims Act § 11 (b). This decision and order was affirmed by the Appellate Division, Fourth Judicial Department (see Kobrin v State of New York, 144 AD3d 1542 [4th Dept 2016]). On September 12, 2015, claimant filed her second claim for breach of contract, claim no. 126896, and served it on September 19, 2015 (Defendant's Exhibit A). This second claim, which is the subject of the present motions, is almost identical to first claim no. 120337 which was dismissed on jurisdictional grounds.
Factual Background
Claimant Carol Kobrin worked for SUNY at Buffalo from 1975 to 1980 as a secretary / stenographer. Claimant then worked as an administrative assistant and as the Assistant to the Director at SUNY at Buffalo in the Academic Advisement Center. She then worked as Assistant to Vice Provost and from August of 2000 until August of 2005, she worked as Assistant Vice Provost. After August of 2005, claimant was the Chief of Staff for David L. Dunn, M.D., Ph.D., the Vice President for Health Sciences. Claimant earned a B.S. from Empire State College in 1993 and then took some graduate level courses at Empire State College (Claimant's deposition transcript attached to claimant's motion as claimant's Exhibit C, pgs. 5-10; and Claimant's Exhibit I).
Certain management/confidential positions at SUNY at Buffalo required approval by the President of the University (¶ 8 of the February 18, 2015 affidavit of Susan Krzystofiak; and see "Appointment of Employees" and "College Officers and Organizations" of the SUNY policies of Board of Trustees, Article XI, Title A§ 1 and Article IX, Title A, § 1, 2 [Claimant's Exhibit R]). Her first three positions were classified as stenographer, senior stenographer and secretary. There was no requirement that these positions be approved by the President of SUNY at Buffalo (¶ 10 of the February 18, 2015 affidavit of Susan Krzystofiak).
By letter dated February 9, 1998, the President of SUNY at Buffalo, William R. Greiner, appointed claimant to the position of Staff Associate / SL4. This Appointment was designated as a "term" appointment to run from February 1, 1998 to January 31, 2001. It was made in accordance with the policies of the Board of Trustees, Article XI and "the rules and regulations which govern such Appointments. . ." (Claimant's Exhibit K).
By letter dated March 6, 2000, President Greiner appointed claimant to the position of Senior Staff Associate / SL5. This was a "term" appointment to run from February 1, 2000 to January 31, 2001. This appointment partially overlapped her prior appointment. The only difference between this appointment and the prior appointment was the designation of a higher job classification and a higher annual salary. (Claimant's Exhibit L).
By letter dated January 16, 2001, President Greiner appointed claimant to the position of Senior Staff Associate / SL5 for the term February 1, 2001 to January 31, 2002. This appointment was also made in accordance with the policies of the Board of Trustees, Article XI and the rules and regulations which govern such appointments (Claimant's Exhibit L).
Effective February 1, 2002, claimant was granted "permanent appointment" as Senior Staff Associate in the Department of the Vice Provost for Enrollment Management by President Greiner. This appointment was specifically made subject to the approval of the Chancellor of the State University of New York (Claimant's Exhibit L).
By letter dated August 26, 2005, David L. Dunn, Vice President for Health Services offered claimant an appointment as his Chief of Staff, Office of the Vice President for Health Sciences to be effective on September 1, 2005. It was stated in the letter offer and "understood" that claimant would continue to perform the duties of her current position in the Office of the Provost for an unspecified period of time. This appointment was made under a Management / Confidential designation which specifically indicated that claimant was an "at-will" employee. If accepted, claimant was to serve at the pleasure of the President of SUNY at Buffalo and "nothing contained in [ the] letter [was] intended to modify [her] status" as an at-will employee. She was to serve for a period of time to be determined by the President of the University. Claimant accepted the offer (Claimant's Exhibit M).
On December 8, 2006, Dr. Dunn authorized an annual salary of $18,000 on a UB Foundation appointment authorization form indicating claimant's UB Foundation title as being the assistant to the VP for Health Sciences. This form indicated that claimant was also employed by the University at Buffalo at an annual salary of $109,800 and her "combined university employment" was full time (Claimant's Exhibit N).
On subsequent UB Foundation appointment authorization forms dated February 5, 2008 and January 8, 2009, Dr. Dunn authorized UB Foundation salary increases for claimant. By UB Foundation appointment authorization form dated May 10, 2010, Dr. Dunn authorized an additional $20,000 UB Foundation annual salary increase from a different account number to be added to the $30,200 UB Foundation salary indicated on the previous UB Foundation form dated January 8, 2009, for a total UB Foundation annual salary of $50,200 to be added to her SUNY at Buffalo salary. Once again, the May 5, 2010 UB Foundation form indicated that claimant was also employed by SUNY at Buffalo (Claimant's Exhibit N).
The last UB Foundation appointment authorization form included with claimant's motion papers is dated November 16, 2010 and was signed by Dr. Dunn. This form indicated that claimant's UB Foundation appointment was to be changed from supplemental appointment to regular full time UB Foundation employment with an annual UB Foundation salary of $182,000. The remarks portion of the form indicated that claimant was resigning from the State for purposes of retirement effective at the beginning of business on November 30, 2010. This form also indicated that claimant was no longer "also employed" by SUNY (Claimant's Exhibit N).
In 2010, certain employees were offered the option to take early retirement pursuant to an incentive program. Claimant retired from her professional appointment as assistant to the Vice President of Health Sciences. By letter dated November 2, 2010 addressed to Dr. Dunn, Vice President for Health Sciences, claimant resigned her position with the State "for purposes of retirement" at the beginning of business on November 30, 2010. Claimant read and understood that by signing certain retirement papers that her retirement was irrevocable. Claimant retired at the age of 53 (Defendant's Exhibits F and G; Claimant's Exhibit C, pgs. 16-32.
Shortly after resigning her position with SUNY, claimant began to receive an annual pension of approximately $88,000 a year plus health insurance (Defendant's Exhibit E, Claimant's Exhibit C, pgs. 26-27). Claimant also received $10,598.52 for unused vacation hours and $2,408.76 for lag time. According to claimant, management confidential employees were lagged one day for five pay periods to be returned when they left State service (Claimant's Exhibit C, pgs. 21-22).
In October of 2010 claimant was offered an appointment to the position of Chief of Staff to the Vice President for Health Sciences, David L. Dunn, for a five-year term from November 30, 2010 through November 30, 2015 (Claimant's Exhibit O). The letter agreement was drafted by claimant and signed by Dr. Dunn. It was claimant who asked for a five year term as she was only 53 at retirement and was taking permanent age reduction in her pension. Claimant accepted the position when she signed the letter agreement she had drafted on October 12, 2010. Pursuant to this agreement, claimant would receive $182,000 a year, paid through the UB Foundation payroll plus a benefits package administered through UB Foundation. Claimant was paid by a UB Foundation paycheck which listed her employer as UB Foundation (Claimant's Exhibit C, pgs. 40 -42).
According to claimant, she remained working for SUNY at Buffalo after retirement. She never received a waiver for any earnings above $30,000 from the NYS Civil Service Commission because it was "private employment" (Claimant's Exhibit C, pg. 33).
By letter dated June 28, 2011, claimant was advised by Beth Del Genio, Ph.D., Chief of Staff, that her "University Foundation appointment has been terminated." effective close of business on June 30, 2011 (Claimant's Exhibit P). Dr. Dunn left his position as Vice President of Health Sciences also on June 30, 2011 (Claimant's Exhibit C, pgs. 33-35). It was claimant's understanding that she was being relieved as chief of staff as there was going to be a new Vice President for Health Sciences (Claimant's Exhibit C, p. 62).
According to the deposition testimony of Beth Del Genio, PhD, an early retirement package was offered to State employees in 2010 (Claimant's Exhibit D, pg. 44). At that time Dr. Del Genio was Chief of Staff to the Provost, Satish Tripathi. Dr. Del Genio testified that she knew that there were State employees who were offered early retirement, and who were also given the option of keeping their position at the University at Buffalo as long as they were not on the State payroll. Dr. Del Genio believed that claimant was one of the individuals who accepted early retirement in 2010. At that time, Dr. Dunn was transitioning out of the Vice-President of Health Sciences role and the University President had offered to Michael Cain, M.D. the opportunity to take the dual role of Vice President for Health Sciences and keep his previous position as Dean of the School of Medicine and Biomedical Sciences. Beyond the termination of claimant as chief of staff and the offer to Dr. Cain, Dr. Del Genio was not aware of any other involvement of the President's office as far as staffing. (Claimant's Exhibit D, pgs. 15-21).
At some point, Dr. Del Genio became aware that claimant had been offered a position by Dr. Dunn. She was unfamiliar with the October 12, 2010 letter offer from Dr. Dunn (Claimant's Exhibit O). She did not know if the letter had been circulated through the provost office for review or approval, but "may have been" (Claimant's Exhibit D, pgs. 36-39).
Dr. Del Genio testified that she first saw the appointment letter from Dr. Dunn to claimant offering her the position of Chief of Staff to be funded by the UB Foundation in May or June of 2011 as part of the transition from Dr. Dunn to Dr. Cain as Vice President of Health Sciences. According to Dr. Del Genio, other than the firing of claimant effective June 30, 2011, all other staffing issues were left to Dr. Cain as the new Vice President of Health Sciences. She further testified that Dr. Cain would not have needed the President's approval to staff his unit. She believed this was the same procedure as when Dr. Dunn held the position of Vice President of Health Sciences. According to Dr. Del Genio, Dr. Cain did not select anyone to be his Chief of Staff; the position was not staffed (Claimant's Exhibit D, pgs. 21-23; 37; and 48-49).
Dr. Del Genio also testified at her deposition that the mission of the UB Foundation was to provide monetary support for the University. She never held any position with UB Foundation. According to Dr. Del Genio, in the period from 2005 to 2011, the various units at SUNY at Buffalo would have budgets. Part of the budget would be money from UB Foundation. The Foundation money was a lump sum and the head of each unit would have the discretion on how to use the money. This money was to be used conservatively (Claimant's Exhibit D, pgs. 19-22; 52-53).
In support of its motion for summary judgment, defendant resubmitted two affidavits from Susan Krzystofiak dated August 29, 2014 and February 18, 2015. As the Assistant Vice President of Human Resources, Ms. Krzystofiak was responsible for maintaining employee personnel files and for payroll and benefits information. According to Ms. Krzystofiak, claimant retired from SUNY at Buffalo effective November 30, 2010. Claimant was not on SUNY at Buffalo's payroll at any time after she retired.
The affidavits of Ms. Krzystofiak were originally submitted as part of defendant's Motion No. M-85684 to dismiss claim no. 120337, claimant's first claim for breach of contract (Claimant's Exhibits F and G).
Ms. Krzystofiak further stated in her affidavits that she was unable to locate any appointment letters approved by the SUNY at Buffalo President for claimant for a position of Chief of Staff to the Vice President for Health Sciences for the period of November 30, 2010 through November 29, 2015. Claimant's personnel file did not contain a copy of the Dr. Dunn appointment letter and the file did not reflect that Dr. Dunn had sought or received approval from the SUNY at Buffalo President. According to Ms. Krzystofiak, the President's approval was required for any such appointment. (See Ms. Krzystofiak's affidavits attached to defendant's motion papers and the Policies of the Board of Trustees [Defendant's Exhibit H]). Motions for Summary Judgment
Summary judgment is a drastic remedy which should only be granted when the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of such a motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (Zuckerman v City of New York, supra at 562). Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion. Timeliness of Claim No. 126896 and the applicability of CPLR 205 (a)
Defendant argues that claim no. 126896 is untimely and must be dismissed. Pursuant to Court of Claims Act § 10 (4), a claim for breach of contract must be filed and served within six months after accrual unless, within the same time period, claimant serves a notice of intention to file a claim, in which event the claim shall be filed and served within two years after accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to timely serve a notice of intention or a claim within the requisite time period divests the Court of subject matter jurisdiction requiring dismissal of the claim (Alston v State of New York, 97 NY2d 159 [2001]); Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
According to claim no. 126896 (Defendant's Exhibit A), the claim accrued on June 30, 2011 when claimant was terminated from her employment. Thus, to be timely, a notice of intention or a claim had to be filed and served within six months or by December 30, 2011. No notice of intention was apparently served and claim no. 126896 was not filed until September 12, 2015 and not served until September 20, 2015, almost four years after the claim accrued. Accordingly, claim no. 126896 was untimely filed and served. Defendant argues that the claim should be dismissed as being jurisdictionally defective.
Claimant argues that the claim is timely as it was filed and served within six months of the dismissal of her initial claim, claim no. 120337, in compliance with CPLR 205 (a) which provides that:
"[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commence-ment of the prior action and that service upon defendant is effected within such six-month period. . ."
Claimant alleges that she was wrongfully terminated from her employment on June 30, 2011. On September 12, 2011 claimant filed her first claim, claim no. 120337, and served it on September 20, 2011, within six months of the alleged breach of her employment contract in compliance with Court of Claims Act § 10 (4). By decision and order of the Hon. Michael E. Hudson filed July 6, 2016, claim no. 120337 was dismissed as being jurisdictionally defective for failing to set forth the total sum claimed as required by section 11 (b) of the Court of Claims Act (Defendant's Exhibit C). Judge Hudson's decision dismissing the first claim was unanimously affirmed by the Fourth Judicial Department in Kobrin v State of New York, 144 AD3d 1542 [4th Dept 2016]).
On October 20, 2015 and October 25, 2015, respectively, present claim no. 126896 was filed and served. In that claim no. 126896 was filed and served within six months of the filing of the decision and order dismissing the first claim, claim no. 120337, and because both claims are based on the same occurrence, i.e., the alleged breach of an employment contract, claimant alleges that claim no. 126896 is timely pursuant to the tolling provisions of CPLR 205 (a).
Claimant's argument that CPLR 205 (a) is applicable in a Court of Claims action is based, in large part, on the Third Department's decision in Signature Health Ctr., LLC v State of New York, 42 AD3d 678 (3d Dept 2007). In Signature Health, the first claim filed, like the first claim in the present matter, was dismissed as being jurisdictionally defective under Court of Claims Act § 11 (b) because it failed to strictly comply with the substantive pleading requirements of this statute. The Third Department held that the second claim in Signature Health was improperly dismissed as untimely as the second claim was entitled to the tolling provision of CPLR 205 (a) in spite of the fact that the first claim had been dismissed as being jurisdictionally defective under Court of Claims Act § 11 (b). According to the Third Department, the conditions precedent of Court of Claims Act § 10 were satisfied by the timely filing and service of the first claim. While defendant raises some interesting arguments against the application of the tolling provisions of CPLR 205 (a) with respect to the statutory filing and service periods set forth in the Court of Claims Act, this Court is constrained to follow the Signature Health decision in the absence of a contrary holding by the Court of Appeals or another Appellate Division. Thus, based on the Third Department's decision in Signature Health, defendant's motion to dismiss claim no. 126896 as being untimely is denied as the claim was filed and served within the six months recommencement period provided by CPLR 205 (a) after the dismissal of a timely prior claim for failure to satisfy pleading requirements of Court of Claims Act § 11 (b).
Claimant's Employment Status
Defendant asserts in its motion for summary judgment that claimant was employed by the UB Foundation and not by the University at Buffalo. If defendant is correct, then this claim would have to be dismissed as UB Foundation is a private not-for-profit corporation over which this Court has no jurisdiction as it is separate from the State of New York (see Defendant's Exhibit D). Claimant, on the other hand, asserts in her motion for summary judgment that she was employed by SUNY at Buffalo.
Claimant began working at SUNY at Buffalo in 1975 as a secretary / stenographer. From 1975 to 1995, claimant held approximately four different positions with SUNY at Buffalo. In 1995, claimant was appointed to the position of Senior Staff Assistant (see claimant's employment history annexed as Claimant's Exhibit I). By letter dated February 9, 1998, claimant was appointed by William R. Greiner, President of SUNY at Buffalo, to the position of Senior Staff Assistant. This term appointment was made pursuant to the policies of the Board of Trustees, Article 11, and the "rules and regulations which govern such Appointments. . ." (Claimant's Exhibit K).
By letter dated March 6, 2000, William R. Greiner, President of SUNY at Buffalo, offered claimant an appointment to the position of Senior Staff Associate. This was a one year term appointment made pursuant to Article 11 of the policies of the Board of Trustees and the rules and regulations governing such appointments (Defendant's Exhibit L). In January of 2001, President Greiner offered claimant another one year term appointment to the position of Senior Staff Associate (Defendant's Exhibit L). In January of 2002, with the recommendation of President Greiner, claimant was appointed to permanent status as Senior Staff Associate subject to the terms of the Board of Trustees (Defendant's Exhibit L).
By letter dated August 26, 2005, claimant was offered an appointment as Chief of Staff in the Office of the Vice President for Health Sciences at the University of Buffalo. At that time, the Vice President for Health Sciences was David L. Dunn, M.D., PhD., who signed the letter offer (see Claimant's Exhibit M). This appointment was made under a Management / Confidential as well as an "at-will" employment designation. There is no indication that Dr. Greiner as the President of SUNY at Buffalo approved this appointment.
Around October of 2010, SUNY at Buffalo offered early retirement to certain eligible employees. By letter dated October 12, 2010, signed by Dr, Dunn, but admittedly drafted by claimant, claimant was offered the position of Chief of Staff to the Vice President for Health Sciences for a term of five years. This letter indicated that claimant would report directly to the Vice President for Health Sciences and "that I [Dr. Dunn] will be your immediate supervisor." [Claimant's Exhibit O]. Claimant was to be paid $182,000 a year and receive benefits through UB Foundation. There is no indication that President Greiner approved this appointment.
Claimant resigned her "State position" for purpose of retirement effective November 30, 2010. By almost simultaneously drafting her own subsequent employment agreement to be funded by UB Foundation and retiring from SUNY at Buffalo, claimant was able to secure a pension of $88,000 a year, plus free health insurance from SUNY at Buffalo, together with a salary of $182,000 a year plus benefits from UB Foundation. By her lawsuit, claimant is attempting to recover $182,000 a year plus benefits for a period of five years from SUNY at Buffalo even though the employment letter she drafted stated that her salary and benefits would be paid by UB Foundation and in spite of her admission that her employment pursuant to the October 2010 letter was "private employment" and not public employment.
The State University of New York was established by Education Law § 352. Under Education Law § 355 (2) (b), the University's Board of Trustees was empowered to establish rules regarding appointments (Defendant's Exhibit H). Pursuant to Article XI, Title A §1 and Article IX, Title A, §1 of the Policies of the Board of Trustees, professional staff had to be approved by the Chief Administrative Officer. Pursuant to the New York Codes, Rules and Regulations, 8 NYCRR§ 335.12 "[a]ll term appointments shall be made by the chief administrative officer of the college and shall be reported to the chancellor." The Chief Administrative Officer is the head of the college, whether called president, dean, provost, director or otherwise (8 NYCRR § 326.1 [h]). Thus, the alleged contract was void as it was not approved by the Chief Administrative Officer, i.e., the President of SUNY at Buffalo.
Claimant argues that approval by the President was not necessary and that Dr. Dunn had the apparent authority to offer claimant the position of his chief of staff. This argument is based, in part, on appointment letters offered by Dr. Dunn to other University professionals which she argues were also not approved by the University President (Claimant's Exhibit O). These letters were apparently obtained by the claimant without the permission of the employees involved. Some of these appointment letters indicate that a copy was being sent to Provost Satish K. Tripathi, Ph.D., but there is no indication whether or not these appointment letters were forwarded to the President for approval. Moreover, with the singular exception of claimant's own appointment letter which she drafted, none of the other appointment letters somehow obtained by claimant are for a specific term. In fact, all of the other appointment letters are offering "at-will" appointments whereby the accepting employee would serve at the pleasure of the Vice President for Health Sciences.
Claimant further argues that Dr. Del Genio testified at her deposition that persons in Dr. Dunn's position "typically" have hiring authority and are not required to obtain the approval of the University President. She also testified that Dr. Dunn's successor, Michael Cain, M.D., had the same authority to hire without the approval of the President. Claimant was terminated, however, from her "University at Buffalo Foundation appointment" (Claimant's Exhibit P) on June 30, 2011 at the same time as Dr. Dunn was leaving his appointment as Vice President of Health Sciences. Dr. Dunn's departure was the reason given to claimant for her termination. By her five year appointment letter, claimant was attempting to deprive Dr. Dunn's successor of the same authority she alleges Dr. Dunn had, i.e., the authority to hire his own staff, thereby forcing Dr. Cain to accept Dr. Dunn's appointments for a period of approximately four and a half years.
In support of their differing positions, claimant and defendant rely on different trial court decisions. Claimant relies on Wan v State University of New York at Buffalo, the University of Buffalo Foundation and William R. Greiner as University President (Claimant's Exhibit S). In Wan, the Hon. John F. O'Donnell, Justice of the Supreme Court, in granting the motion of UB Foundation Activities, Inc. to dismiss the complaint against it noted in his memorandum that the Foundation, by paying funds directly to the petitioner and administering payroll, was not acting as an employer. More recently, the Fourth Department in Gerrish v State Univ. of N.Y. at Buffalo, 129 AD3d 1611 [4th Dept 2015], upheld a decision by the Hon. John A. Michalek, Justice of the Supreme Court, dismissing a complaint against the University Foundation defendants as the plaintiff therein had failed to allege a contract with the Foundation defendants or that they breached it. In so holding, the Fourth Department noted that the lower court did not err in considering a decision from a court of coordinate jurisdiction which had determined that another professor was an employee of the University although a foundation at the University had funded that professor's research.
This Court need not, however, determine whether claimant was a University Foundation employee as the foundation is not a party to this claim. Rather, it need only decide whether SUNY at Buffalo breached a letter appointment signed by Dr. Dunn and drafted by claimant without the approval of the President of SUNY at Buffalo by terminating the claimant before the five year term expired.
In arguing that SUNY at Buffalo cannot be bound by Dr. Dunn's appointment letter, defendant relies on Malkan v State of New York [Ct Cl, Hudson, J., filed June 19, 2015] (see Appendix A). In Malkan, the Hon. Michael E. Hudson, Judge of the Court of Claims, found that Mr. Malkan's University appointment letter was subject to Article IX of the Policies of the Board of Trustees (Defendant's Exhibit H) and that under these policies it was the President of the University, and not the Dean of the Law School, who served as the Chief Administrative Officer and possessed the power to make term appointments (see 8 NYCRR 326.1 [d] and [h] and 8 NYCRR 335.10, 335.13). By decision dated December 23, 2016, the Fourth Department upheld Judge Hudson's denial of Malkan's motion for permission to late file a claim against the University for breach of an appointment letter noting that the proposed claim lacked merit (see Malkan v State of New York, 145 AD3d 1601 [4th Dept 2016], lv denied 29 NY3d 907 [2017]).
Defendant further argues that claimant's appointment letter violated Civil Service Law and the NYS Retirement Law. Section 150 of the Civil Service Law of the State of New York mandates that retired state employees may not be rehired by the State or a political subdivision and receive pension benefits while so employed. Claimant attaches to her motion papers as Exhibit Q a copy of a handout effective January 9, 2009 entitled "Re-employment of Retired Public Employees" apparently put out by SUNY. In the handout it is stated that the clear intent of the Civil Service Law "is to restrict the circumstances in which an individual can simultaneously receive both a salary and a pension from New York State. This is important to avoid any appearance of impropriety."
Sections 211 and 212 of the Retirement and Social Security Law provide two exceptions. Section 212 allows a retired state employee to earn up to $30,000 a year and continue to receive full pension benefits. While there is no earning limit for persons age 65 or older, claimant was only 53 at the time of her retirement. Section 211 provides for a waiver of the $30,000 limit when the President of the State University grants such a waiver. Such waivers may be granted by University Presidents for periods not to exceed two years, provided the retired person does not return to work in the same or similar position for a period of one year after retirement. According to the handout, these waivers should be rarely made and only granted for a period of time that is absolutely necessary. Here, claimant's personnel file failed to reveal any approval by the President for her post-retirement five year letter appointment. The section of the handout entitled "Re-Employment with the Same /Different Employer - Limited versus Unlimited Earnings" indicates that when a retiree from a state campus is re-employed at the same campus, any earnings are subject to the limitation of section 212, which is $30,000 a year.
Claimant argues that her $182,000 earnings per year from the University Foundation under the letter appointment amounted to "private employment" under the "Definitions" section and therefore do not count toward the earnings limit. If, as claimant alleges, her earnings were from "private employment", then her action should be against UB Foundation in State Supreme Court. But claimant herein is attempting to recover $182,000 a year plus benefits from the State under a letter appointment she drafted after she retired from her State employment and was receiving $88,000 a year pension plus free health care, without obtaining approval or a waiver from the University President in violation of the Policies of the Board of Trustees and of the Civil Service and New York State Retirement Law. This she may not do.
Based on the foregoing, claimant's motion for summary judgment, motion no. M-88484 is denied. Defendant's motion for summary judgment, motion no. M-88482 is granted and claim no. 126896 is dismissed.
June 30, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court:
Defendant's Motion No. M-88482
1. Notice of Defendant's motion for summary judgment, motion no. M-88482 and supporting affidavit of Assistant Attorney General Wendy E. Morcio sworn to April 25, 2016, with annexed Exhibits A-I; 2. Supporting affidavits of Susan Krzystofiak sworn to August 29, 2014 and February 18, 2015; 3. Opposing affirmation of Diane R. Tiveron, Esq. dated June 1, 2016, with annexed Exhibits A-S; 4. Claimant's Memorandum of Law dated June 1, 2016; 5. Reply affirmation of Assistant Attorney General Wendy E. Morcio dated June 6, 2016;
These affidavits were originally submitted as part of defendant's motion for summary judgment dismissing claimant's first claim no. 120337.
Claimant's Motion No. M-88484
6. Notice of Claimant's motion for summary judgment no. M-88484 and affirmation of Diane R. Tiveron, Esq. dated April 26, 2016, with annexed Exhibits A-S; 7. Claimant's Memorandum of Law dated April 26, 2016; 8. Opposing affirmation of Assistant Attorney General Wendy E. Morcio dated June 1, 2016, with annexed Exhibit D and I; and 9. Affidavits of Susan Krzystofiak sworn to August 29, 2014 and February 18, 2015.