Opinion
INDEX No. 154124/2024 MOTION SEQ. No. 001
09-26-2024
STEPHEN TROWBRIDGE, Plaintiff, v. CITY UNIVERSITY OF NEW YORK, RUSSELL HOTZLER, MIGUEL CAIROL Defendant.
Unpublished Opinion
MOTION DATE 09/08/2024
PRESENT: HON. MARY V. ROSADO Justice
DECISION + ORDER ON MOTION
Mary V. Rosado, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 11, 12, 13 were read on this motion to/for DISMISSAL.
Upon the foregoing documents, Defendants City University of New York ("CUNY"), Russell Hotzler ("Hotzler"), and Miguel Cairol ("Cairol") collectively ("Defendants") motion to dismiss Plaintiff Stephen Trowbridge's ("Plaintiff') Complaint is granted.
I. Background
This is an employment discrimination action alleging disability-based discrimination and retaliation (see generally NYSCEF Doc. 2). Plaintiff was employed by CUNY as a Director of Public Safety at the New York City College of Technology ("NYCCT"), a subdivision of CUNY. Plaintiff allegedly was fired after he reported that NYCCT was committing fraud. He also alleges he was fired for seeking disability-based accommodation. Plaintiff alleges retaliation continued as after he was discharged CUNY failed to pay him all unused leave and other benefits.
Defendants move to dismiss and argue the Court of Claims has exclusive jurisdiction over claims asserted against CUNY and its employees. Defendants further argue that CUNY was improperly served according to CPLR § 307. Plaintiff concedes that his breach of contract claim belongs in the Court of Claims and represents he is willing to re-file his breach of contract claim but argues that this Court has jurisdiction over the whistleblower claims, the state human rights law claim, and the FMLA claims. Plaintiff fails to address the service deficiencies pursuant to CPLR § 307. In reply, Defendants reassert that they were not served properly and therefore this Court lacks jurisdiction. Moreover, Defendants argue that because Plaintiff seeks money damages against a state agency, exclusive jurisdiction lies with the Court of Claims.
II. Discussion
Where an action seeks to recover money from the state, it must be brought in the Court of Claims and not the Supreme Court (Bank of New York v Tully, 84 A.D.2d 704 [1st Dept 1981]). This rule encompasses claims for breach of contract against senior colleges of City University (Gelin v Lehman College, 254 A.D.2d 119 [1st Dept 1998]; Illickal v Roman, 236 A.D.2d 247 [1st Dept 1997]; see also Education Law § 6224[4]). Moreover, whistleblower retaliation claims in violation of Civil Service Law § 75-b "are committed to the exclusive jurisdiction of the Court of Claims" (Ajoku v New York State Office of Temporary and Disability Assistance, 198 A.D.3d 437 [1st Dept 2021] citing Schaffer v Evans, 86 A.D.2d 708 [1st Dept 1982]). However, the Court of Appeals has ruled that claims under the New York State Human Rights Law may be brought in the Court of Claims or other forums (Koerner v State, 62 N.Y.2d 442 [1984]).
Pursuant to CPLR 307, to sue a state officer who was acting solely in their official capacity, or a state agency, service must be made by (1) delivering the summons to such officer or to the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested, to such officer or to the chief executive officer of such agency, and by personal service upon the state by delivering same to an assistant attorney-general.
Here, the affidavits of service indicate only that the Amended Complaint was served on the Attorney General (NYSCEF Docs. 10-11), but there is no affidavit of service indicating the Amended Complaint was mailed to or served on the individual state officers Hotzler or Cairol or the chief executive officer of CUNY, which is a state agency within the meaning of CPLR 307(2) (see e.g. Vargas v State, 95 A.D.3d 588 [1st Dept 2012]; Lowney v New York State Div. of Human Rights, 68 A.D.3d 551 ; Moogan v New York State Dept of Health, 8 A.D.3d 68 ; Yoon Kim v New York State Health Dept, 262 A.D.2d 156 [1st Dept 1999]). Plaintiff did not address these deficiencies in opposition to Defendants' motion.
Based on the issues surrounding service and subject matter jurisdiction, this Court is constrained to dismiss the action (see, e.g. Golembiowski v Port Auth. of NY &NJ, 205 A.D.3d 478 [1st Dept 2022]; see also Court of Claims Act § 11 [a][ii]). However, as the dismissal is not on the merits but based on technicalities, it is without prejudice, with leave to replead in the proper forum and where service has been properly effectuated on the Defendants.
Accordingly, it is hereby, ORDERED that Defendants City University of New York, Russell Hotzler, and Miguel Cairol's motion to dismiss Plaintiffs Complaint is granted, and the Complaint is hereby dismissed, without prejudice, with leave to replead in the proper forum in accordance with the requirements of CPLR 307; and it is further
ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.