Opinion
# 2011-015-284 Claim No. 118282 Motion No. M-80100
12-22-2011
Synopsis
Claim alleging a violation of the due process clause of the New York Constitution was dismissed because article 78 proceeding in the nature of mandamus to compel was unavailable. Case information
UID: 2011-015-284 Claimant(s): ROBERT SHAPIRO Claimant short name: SHAPIRO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118282 Motion number(s): M-80100 Cross-motion number(s): Judge: FRANCIS T. COLLINS Borrelli & Associates, PLLC Claimant's attorney: By: Alexander T. Coleman, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Michele M. Walls, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: December 22, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (2) on the ground that this Court lacks subject matter jurisdiction over the claim, and that alternative avenues of redress are available relative to claimant's constitutional tort causes of action.
Claimant alleges the New York State Department of Labor ("DOL") violated his right to due process under the New York State Constitution by failing to render a timely determination with regard to his complaint of discrimination thereby precluding an action by the Commissioner of Labor under the Public Employee Safety and Health Act (PESHA) within the three-year statutory limitations period applicable to such claims.
Claimant was employed by the New York City Board of Education as a home institution teacher responsible for providing home schooling to children who were injured or ill (defendant's Exhibit A, Claim, ¶ 9). In February 1991 claimant wore a mask and gloves while teaching a student and was ordered not to do so again (defendant's Exhibit A, ¶¶ 16-17). Claimant alleges that "[i]mmediately thereafter, [he] received the first of a series of retaliatory 'unsatisfactory' evaluations, which would ultimately be used as a pretext to terminate Claimant" (defendant's Exhibit A, Claim, ¶ 18). In June 1991 claimant filed a complaint under PESHA with the DOL alleging retaliatory misconduct (defendant's Exhibit A, Claim, ¶ 19). Claimant was thereafter terminated in September 1991 (defendant's Exhibit A, Claim, ¶ 21). DOL performed an investigation, issued a citation to the Board of Education and, in April 1993, claimant filed a second complaint against the Board of Education, this time alleging retaliatory termination in violation of Labor Law § 27-a (10) (defendant's Exhibit A, Claim, ¶¶ 22-24). Claimant alleges that 12 years passed before the DOL finally issued a determination with respect to his 1993 complaint, concluding that the Board of Education had not engaged in illegal activity (defendant's Exhibit A, Claim ¶¶ 29, 30). Claimant appealed the DOL's determination to the Industrial Board of Appeals, which overruled the DOL and remanded the complaint for further investigation (defendant's Exhibit A, Claim ¶¶ 31-32). Following remand, the DOL again issued a determination letter, this time denying the complaint on timeliness grounds (defendant's Exhibit A, Claim ¶¶ 37-38).Claimant's appeal from this determination is currently pending before the Industrial Board of Appeals (defendant's Exhibit A, Claim ¶ 40).
While subdivision 10 [b] requires an employee to file a complaint within 30 days of the discriminatory employment action, the Court of Appeals held in Hartnett v New York City Tr. Auth. (86 NY2d 438 [1995]) that this period is not a statute of limitations and may be waived. Claimant alleges that notwithstanding the DOL's 2008 denial of his complaint on timeliness grounds, it had, in fact, waived the 30-day time limit when the complaint was filed in 1993(defendant's Exhibit A, Claim, ¶ 25).
As noted by the Court of Appeals in Hartnett v New York City Tr. Auth. (86 NY2d 438 [1995]) PESHA was enacted in 1980 "to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA" (Id. at 442). Employees who believe that a violation of a safety or health standard exists may request an inspection by giving notice to the Commissioner (Labor Law § 27-a [5] [a]) and Labor Law § 27-a (10) (a) makes it unlawful to discriminate against an employee because he or she has done so. An employee who believes that he or she was discriminated against in violation of subdivision 10 (a) may file a complaint "within thirty days after such violation occurs" (Labor Law § 27-a [10] [b]). Following an investigation, if the Commissioner determines that the provisions of subdivision 10 have been violated, he or she is required to request the Attorney General to bring an action in the Supreme Court against the persons alleged to have committed the discriminatory practice (Labor Law § 27-a [10] [b]). Labor Law § 27-a [10] [b] provides further that "[i]n any such action the supreme court shall have jurisdiction, for cause shown, to restrain violations of this subdivision and order all appropriate relief, including rehiring or reinstatement of the employee to his former position with all back pay." Labor Law § 27-a [10] [c] requires that "[w]ithin ninety days of this receipt of a complaint filed under this subdivision the commissioner shall notify the complainant and his representative by registered mail of his determination".
The crux of the instant claim is that not only did the DOL fail to make a determination with respect to the claimant's complaint of retaliatory termination within the requisite 90-day period, it waited to do so until long after the time to bring a claim in the Supreme Court expired. While PESHA itself makes no reference to the applicable statute of limitations, the Court of Appeals in Hartnett (supra) resolved that the three-year statute of limitations applicable to actions "to recover upon a liability . . . created or imposed by statute" applies (CPLR § 214 [2]). Claimant alleges the retaliatory termination of his employment occurred in September 1991 and that, notwithstanding the filing of his complaint in April 1993, a determination was not made with respect thereto until more than twelve years later. Accordingly, at that point any action by the Attorney General for equitable or monetary relief was time barred. Inasmuch as PESHA does not provide for a private right of action, claimant alleges that the DOL's twelve-year delay in rendering a determination with respect to his complaint constituted a violation of his right to due process under Section 6, Article I, of the New York State Constitution.
Initially, the Court agrees with defendant that this Court lacks jurisdiction to review the administrative determination at issue in this case. The law is clear that an article 78 proceeding in the Supreme Court is the appropriate procedural vehicle to challenge an administrative determination, not a plenary action in the Court of Claims (Carver v State of New York, 79 AD3d 1393 [2010]; Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143 [2009], lv denied 12 NY3d 712 [2009]; Matter of City of New York v Commissioner of Labor, 31 Misc 3d 398 [2011] [decision by respondent Industrial Board of Appeals to uphold notices of violation was not arbitrary and capricious or in violation of law]). To the extent the claimant was allegedly aggrieved by the failure of the DOL to issue a determination with respect to his complaint, an article 78 proceeding in the nature of mandamus was available. "Where an officer or agency failed or refused to conduct a hearing or decide a particular matter where there was a mandatory, nondiscretionary duty to do so, mandamus is appropriate to compel performance of the required duty" (Matter of Davidson v LaGrange Fire Dist., 82 AD3d 1227, 1229 [2011], citing Klostermann v Cuomo, 61 NY2d 525, 540 [1984]; Matter of Utica Cheese v Barber, 49 NY2d 1028 [1980]; Matter of 2433 Knapp St. Rest. Bar v Department of Consumer Affairs of City of N.Y., 150 AD2d 464 [1989]).
Here, Labor Law § 27-a (10) (c) required that "[w]ithin ninety days of this receipt of a complaint filed under this subdivision the commissioner shall notify the complainant and his representative by registered mail of his determination." Mandamus to compel compliance with this non-discretionary statutory mandate was therefore available. Thus, even assuming a constitutional tort cause of action exists for violations of the due process clause, an issue not resolved by the Court of Appeals in Brown v State of New York (89 NY2d 172 [1996]), the constitutional tort claim lacks merit. That is because it is now settled that a violation of the N.Y. Constitution does not give rise to a tort cause of action where the claimant has an alternate "avenue of redress" (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Brown v State of New York, 89 NY2d 172 [1996]; Bullard v State of New York, 307 AD2d 676 [2003]). The availability of article 78 relief forecloses recognition of a constitutional tort cause of action.
Based on the foregoing, defendant's motion is granted and the claim is dismissed.
December 22, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated July 7, 2011;
2. Affirmation of Michele M. Walls dated July 6, 2011 with exhibits;
3. Memorandum of law of Michele M. Walls dated July 7, 2011;
4. Affirmation of Alexander T. Coleman dated September 7, 2011with exhibits;
5. Reply affirmation of Michele M. Walls dated September 28, 2011.