Opinion
# 2020-053-550 Claim No. 133106 Motion No. M-95789
12-09-2020
PETER VON STACKELBERG v. ALFRED STATE COLLEGE OF TECHNOLOGY, STATE UNIVERSITY OF NEW YORK
HOUSH LAW OFFICES, PLLC BY: Frank Housh, Esq. HON. LETITIA JAMES New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
Defendant's motion for summary judgment of this claim alleging age discrimination, violation of Executive Law 296, breach of contract, negligent infliction of emotional distress, and negligent hiring, training and supervision is granted. The Court dismissed the claim on the basis that claimant failed to timely serve a notice of intention or claim within the requisite statutory time period.
Case information
| UID: | 2020-053-550 |
| Claimant(s): | PETER VON STACKELBERG |
| Claimant short name: | VON STACKELBERG |
| Footnote (claimant name) : | |
| Defendant(s): | ALFRED STATE COLLEGE OF TECHNOLOGY, STATE UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133106 |
| Motion number(s): | M-95789 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | HOUSH LAW OFFICES, PLLC BY: Frank Housh, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 9, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Peter Von Stackelberg alleges in claim no. 133106 that he was overlooked by Alfred State College of Technology (Alfred) for several adjunct teaching positions and was actually or constructively terminated from his term employment at Alfred due to age discrimination. Defendant moves for summary judgment. Claimant failed to appear or otherwise oppose defendant's motion.
The State University is an integral part of the government of the State of New York and when it is sued, the State is the real party in interest (see State Univ. of N.Y. v Syracuse Univ., 285 App Div 59 [3d Dept 1954]; Colombo v Schwartz, 15 AD3d 522 [2d Dept 2005]). --------
Claimant Peter Von Stackelberg was employed as a part-time adjunct professor at Alfred from August of 2007 until May 20, 2016, teaching instructional design and technical courses pursuant to term employment contracts. Claimant alleges in claim no. 133106 that he was overlooked for a full time teaching position in 2015 and that he was advised in April of 2016 that his employment with Alfred would not be renewed after May 20, 2016, due to age discrimination (see the March 18, 2016 letter from Alfred President Skip Sullivan to claimant annexed to the claim as Exhibit B).
Claimant raises four causes of action in his claim: (1) Age Discrimination in violation of Executive Law §296; (2) breach of contract; (3) negligent infliction of emotional distress; and (4) negligent hiring, training supervision and retention of Alfred President Sullivan and Provost Poppo. Defendant moves for summary judgment dismissing the claim on the grounds that: (1) all of the causes of action alleged in the claim are time-barred by the provisions of the Court of Claims Act §§ 10 [3] and [4]; (2) claimant's breach of contract cause of action fails to comply with the pleading requirements of the Court of Claims Act § 11 [b]; (3) there is no right of renewal of a term appointment; (4) courts do not recognize a cause of action for infliction of emotional distress against a governmental entity; and (5) there is no cause of action for negligent training. These defenses were raised by defendant with particularity in its answer (Defendant's Exhibit B).
Pursuant to Court of Claims Act § 10 (3), a negligence claim shall be filed and served upon the Attorney General within ninety days after the accrual of the claim, unless the claimant shall within the same ninety day time period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served upon the Attorney General within two years after accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]). The failure to timely serve a notice of intention or a claim within the requisite statutory period divests the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). Defendant alleges that neither a notice of intention to file a claim nor a claim was served within the requisite statutory period.
Claimant's third cause of action in the claim for negligent infliction of emotional distress and his fourth cause of action for negligent hiring, training, supervision and retention sound in negligence and are governed by Court of Claims Act § 10 (3). No notice of intention to file a claim was served upon the Attorney General. Accordingly, claimant's two negligence causes of action had to be filed and served upon the Attorney General within ninety days after accrual of the claim. The latest possible accrual date alleged in the claim would be May 20, 2016, when claimant's employment ended. In order for claimant's negligence causes of action to be timely, the claim had to be filed and served within ninety days after May 20, 2016, or by August 18, 2016, at the latest. Claim no. 133106 was filed on May 17, 2019, and served on the Attorney General on October 30, 2019 (see Von Stackelberg v Alfred State College of Technology, Defendant's Exhibit C ). As the claim was neither filed nor served within ninety days after accrual of the negligence causes of action, the claim's third cause of action for negligent infliction of emotional distress and the claim's fourth cause of action for negligent hiring, training, supervision and retention must be dismissed as being untimely.
Claimant's second cause of action in the claim for breach of an implied contract is governed by Court of Claims Act § 10 (4), which provides that a claim for a breach of an express or implied contract, and any other claim not otherwise provided for in section 10 of the Court of Claims Act, must be filed and served upon the Attorney General within six months after the accrual of the claim, unless within the same time period, the claimant shall serve upon the Attorney General 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 latest possible accrual date for a breach of an implied contract cause of action would be May 20, 2016, when claimant's employment ended. In order for claimant's breach of contract cause of action to be timely, the claim had to have been filed and served within six months of accrual or by November 22, 2016, at the latest. As the claim was filed on May 17, 2019 and served upon the Attorney General on October 30, 2019, more than three years after the breach of contract cause of action accrued, claimant's second cause of action for breach of an implied contract must be dismissed as being untimely.
There is a difference of opinion between Court of Claims Judges and the Third Department over which section of Court of Claims Act § 10 applies to claimant's first cause of action for violation of Executive Law § 296 referred to as the Human Rights Law. In recent Court of Claims decisions, it was noted that the State's Human Rights Law (Executive Law § 290 et seq.) was governed by the catchall provision of Court of Claims Act § 10 (4), which provides that claims not provided for in other parts of section 10 shall be filed and served within six months of accrual, unless a notice of intention was served within the same time period (Clauberg v State of New York, 19 Misc 3d 942 (2008); Pilla v The City College of New York, UID No. 2019-032-026 [Ct Cl, Hard, J., April 19, 2019]). The Third Department, however, in Bhagalia v State of New York, 228 AD2d 882 (3d Dept 1996), held that the ninety day limitations period applicable to unintentional torts pursuant to Court of Claims Act § 10 (3) should be applied. This Court need not determine which limitations period is proper as no notice of intention was filed and the claim was filed and served well beyond the ninety day limitations period of Court of Claims Act § 10 (3) or the six month limitations period of Court of Claims Act § 10 (4). Thus, under either limitations period, claimant's first cause of action for a violation of Executive Law § 296 (The Human Rights Law), was untimely and must be dismissed.
As claim no. 133106 was untimely filed and served and must be dismissed as being jurisdictionally defective, there is no reason to rule upon defendant's remaining grounds for dismissal of the claim. Accordingly, defendant's motion no. M-95789 for summary judgment is granted and claim no. 133106 is dismissed.
December 9, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affirmation of Assistant Attorney General Wendy E. Morcio dated July 30, 2020, with annexed Exhibits A-C.