Opinion
# 2017-053-527 Claim No. 125583 Motion No. M-89551
06-12-2017
CARL WHATLEY v. CITY UNIVERSITY OF NEW YORK
LAW OFFICE OF DEVIAN DANIELS BY: Devian Daniels, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Cheryl Rameau, Esq. Assistant Attorney General
Synopsis
Defendant CUNY"s motion to dismiss is granted as the claim is jurisdictionally defective as it fails to comply with Court of Claims Act § 11 (b) by setting forth the time when the claim accrued. In addition, the Court of Claims lacks subject matter jurisdiction of a claim which seeks to have the court review the administrative determination of CUNY to terminate the claimant's employment.
Case information
| UID: | 2017-053-527 |
| Claimant(s): | CARL WHATLEY |
| Claimant short name: | WHATLEY |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125583 |
| Motion number(s): | M-89551 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LAW OFFICE OF DEVIAN DANIELS BY: Devian Daniels, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Cheryl Rameau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 12, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On January 15, 2014, claimant Carl Whatley served a notice of intention to file a claim with the New York Attorney General's Office, which was improperly titled a notice of claim, in which he alleged that the defendant breached a contract of employment. The notice of intention alleges that an offer of a contract of employment was extended to claimant on May 29, 2012 to work as a Campus Security Assistant at the CUNY Medgar Evers College, that the defendant breached the contract, that his supervisor treated him in a discriminatory manner, fraudulently forced him to extend the probation period of his employment, committed defamation and prima facie tort, and discharged him on an unspecified date for unreasonable, unjust, illegal and discriminatory reasons. On March 18, 2015, a claim was served on defendant. The claim alleges three causes of action, namely, that the defendant breached an employment contract with claimant, negligently hired and retained claimant's supervisor, and committed fraud against him with respect to claimant's start date and his probationary evaluation periods. The relief sought by claimant includes rescinding the extension of claimant's probation on June 17, 2013, reinstatement to his position with CUNY as a Security Assistant, compensatory damages, back pay and lost benefits, and attorneys fees, costs and disbursements. Nowhere in the Claim does claimant allege a time when any of the three causes of action accrued.
Exhibit A to Defendant's Notice of Motion and Affirmation to Dismiss.
Exhibit B to Defendant's Notice of Motion and Affirmation to Dismiss.
On April 21, 2015, the defendant served and filed a verified answer, in which are raised numerous affirmative defenses. In particular, defendant includes defenses alleging that claimant failed to state a specific date of accrual in his notice of intention or in his claim, that the Court lacks jurisdiction over the claim due to claimant's failure to timely serve a notice of intention within 90 days of the date of accrual, that claimant failed to exhaust any administrative remedies, failed to file an Article 78 proceeding, that the claim was barred by the applicable statute of limitations, and that the Court lacks subject matter jurisdiction over any claim seeking equitable relief. The defendant now moves for summary judgment pursuant to CPLR Rule 3212. The claimant opposes the motion.
Exhibit C to Defendant's Notice of Motion and Affirmation to Dismiss.
Initially, the Court finds that neither claimant's notice of intention nor the claim complies with the provisions of Court of Claims Act § 11 (b). Court of Claims Act § 11 (b) requires in relevant part that "the claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." The notice of intention to file a claim "shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated." Although both the notice of intention and the claim state that the defendant offered a contract of employment to claimant on May 29, 2012, nowhere within either pleading does it state when the claimant was discharged from his employment, when the breach of the alleged employment contract occurred or when the other claims alleging fraud, defamation or prima facie tort occurred. It is well established that a failure to comply with the substantive pleading requirement of Court of Claims Act § 11 (b) is a jurisdictional defect that requires dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]). Further, a failure to comply with the pleading requirements of the Court of Claims Act constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (see Kolnacki v State of New York, supra at 281); and a jurisdictionally deficient claim cannot be cured through amendment or through additional papers submitted in opposition to defendant's motion to dismiss (Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911 [2010]).
In response, claimant's attorney contends that although the claim fails to set forth the date of accrual, the Court should find that the breach of contract claim accrued on the date of the filing of the notice of claim, citing as support the decision (see Fairchild Corporation v State of New York, UID No. 2012-045-011, [Ct Cl, Lopez-Summa, J., May 18, 2012]). The Court finds that the Fairchild decision is distinguishable and does not support claimant's position. In Fairchild, the Court was examining the sufficiency of an appropriation claim after the State brought a motion seeking to dismiss the claim on several bases, including that it was jurisdictionally defective because no accrual date was specified in the claim. Judge Lopez-Summa found that as to the takings claim, the claim did not specify a date of accrual and rejected the claimant's contention that the accrual date could be inferred from the recitation of the facts in the claim. The Court held it would be improper to do so and that the Court of Claims Act does not require the State "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]). Although the Court in Fairchild sustained the breach of contract claim, unlike the present claim, the Fairchild claim specifically stated that as of the date the claim was served, the defendant failed and refused to comply with the terms of the contract. Accordingly, the present claim is jurisdictionally defective and must be dismissed.
Defendant's Affirmation in Support at paragraphs 14 and 15.
Furthermore, even if the claim was not jurisdictionally defective, the Court of Claims is a court of limited jurisdiction with the authority to hear claims against the state and certain public authorities for money damages only (Court of Claims Act § 9). The Court of Claims does not have jurisdiction to grant strictly equitable relief (Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). In determining whether the Court has jurisdiction over a claim, it must be determined "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" (Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). Further, regardless of how a claim is characterized, if the claim requires a review of an administrative agency's determination, the Court of Claims does not have the subject matter jurisdiction to hear the claim (Polanco v State of New York, 130 AD3d 1494 [4th Dept 2015]).
The present claim alleges that an employment contract exists which was breached by defendant when his employment with defendant was terminated at some unspecified date. The notice of intention and claim allege that a letter of the director of Human Resources dated May 29, 2012 constitutes an employment contract. This letter acknowledges an offer of employment that was accepted by claimant, his rate of pay and the dates of his evaluations during an initial probationary period of twelve months. Claimant alleges that defendant, and more specifically, his supervisor, breached this alleged employment contract by failing to comply with defendant's internal policies and conducting the evaluations in accordance with the dates set forth in the May 29, 2012 letter, changed the terms and conditions in the letter, and acted in bad faith by completing evaluations for the claimant for a job title that he was not eligible for and "tricked" the claimant to extend his probationary period and by firing the claimant. Claimant seeks to have this Court rescind the extension of claimant's probation on June 17, 2013 and reinstate him to his position with CUNY as a Security Assistant, all of which constitute equitable relief that is beyond the subject matter jurisdiction of the Court of Claims.
Exhibit B to Notice of Motion to Dismiss, Claim at paragraphs 10 and 17 - 23; exhibit D, Verified Bill of Particulars at paragraphs 25 through 31.
Claimant also seeks compensatory damages, back pay and lost benefits, attorneys fees, costs and disbursements. However, in order to determine claimant's entitlement to this monetary relief, it would be necessary for this Court to review the administrative determination of CUNY officials. As such, this claim is appropriate only in Supreme Court, which has exclusive subject matter jurisdiction to review whether the action of state officials were "in violation of lawful procedure, [were] affected by an error of law or w[ere] arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]; see CPLR 7804 [b]). Although claimant has framed the claim so as to recover damages from an alleged breach of contract, the pleadings clearly indicate an intent to have this Court review the administrative actions and determinations of CUNY officials and their evaluation of claimant's suitability to remain its employee. As such, any monetary award by this Court would be incidental to a review of the administrative actions and determinations of CUNY, which are clearly beyond the subject matter jurisdiction of the Court of Claims (Madura v State of New York, 12 AD3d 759, 760-761 [3d Dept 2004]; lv denied 4 NY3d 704 [2005]; Pratow Corp v State of New York, 148 AD3d 1065 [2d Dept 2017]).
Based on the foregoing, defendant's motion (M-89551) to dismiss the claim pursuant to Court of Claims Act § 11 (b) and CPLR 3211 (a) (2) and (7) is granted and claim no. 125583 is dismissed.
June 12, 2017
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 Cheryl Rameau, Esq., dated November 18, 2016 with Exhibits A-H; 2. Affirmation in opposition of Devian Daniels, Esq., dated February 7, 2017; and 3. Reply affirmation of Assistant Attorney General Cheryl Rameau, Esq., dated February 23, 2017 with Exhibit A.