Defendant's motion to dismiss the claim pursuant to Court of Claims Act § 10 (3) is granted and the claim is dismissed. Claimant's application for permission to file a late claim is denied due to claimant's failure to attach a proposed claim.
|Claimant short name:||HAUSDORF|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the only properly named defendant.|
|Motion number(s):||M-90834, M-90766|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Glass Krakower, LLP
By: Jordan F. Harlow, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Anthony Rotondi, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||January 5, 2018|
|See also (multicaptioned case)|
Claimant filed the instant claim on May 31, 2017, seeking a declaratory judgment and compensation for the alleged negligence of the State of New York in failing to grant claimant's permanent teaching certification for a period of approximately 28 months. On July 18, 2017, defendant filed a motion to dismiss the claim pursuant to Court of Claims Act § 10 (3) on the ground that the Court lacks jurisdiction over the claim because it is untimely. On August 1, 2017, claimant filed a response in opposition to defendant's motion to dismiss in which she also sought permission to file a late claim. Defendant filed a reply to claimant's response in opposition to the motion to dismiss and a response to claimant's application for permission to file a late claim on August 23, 2017. Claimant filed a reply affirmation on August 28, 2017.
Claimant received her provisional teaching certification from the New York State Education Department (NYSED) in 2005, at which time she also began her career as a teacher with the New York City Department of Education (NYCDOE).
In 2010, claimant began the application process to obtain her permanent teaching certification. In September 2010, she was informed that her Master's Degree from Kent State University was insufficient to meet the requirements for the permanent teaching certification. Thus, claimant needed to obtain 12 graduate credits in English or Pedagogy courses in order to obtain her permanent teaching certification. She enrolled in the Master of Education Program in International Educational Development at the Teachers College of Columbia University (Teachers College) in order to obtain the requisite credits. She is still enrolled in this program.
On September 4, 2012, claimant received tenure with the NYCDOE. In 2013, NYSED informed claimant that her Teachers College credits would not count toward her permanent teaching certification. As a result, claimant resigned from her teaching position with NYCDOE in order to enroll in three courses at Teachers College. Once she completed these three courses, she met the requirements to obtain her permanent teaching certification.
In May 2014, claimant submitted to NYSED's Office of Teaching Initiatives (OTI) all requisite documentation to receive her permanent teaching certification. On July 24, 2014, claimant submitted an inquiry to OTI expressing concern that her account information showed that her initial certification requirement was unmet, and that she had not received a confirmation of her submission. Claimant resent her documentation at the end of July 2014. On October 27, 2014 and January 13, 2015, claimant contacted OTI to inquire if they had received the documentation. OTI still had not received the documentation, and claimant resent her Teachers College transcript in February 2015. After receiving no response from OTI, claimant sent the transcript again in July 2015.
On August 18, 2015, claimant was nominated to a position at Epic High School in New York City. The position was contingent upon claimant's acquiring a permanent teaching certification. However, claimant was told that the position would be held for her until she obtained her permanent teaching certification.
On September 21, 2015, claimant received a "Notice of Uncompleted Requirements for Certification" which informed her that her application had been disapproved because it had been on file for more than three years and evaluated twice. In October 2015, claimant reopened her application for her permanent teaching certification. She did not resend her Teachers College transcript, as she was informed that OTI had the transcript on file. She received another "Notice of Uncompleted Requirements for Certification" on December 1, 2015, stating that she was missing nine graduate credits needed for her application. On December 5, 2015, claimant drove to the NYSED building in Albany in order to hand deliver her transcript. However, upon arrival she was not permitted to enter the building or speak to anyone in the office.
On December 17, 2015, claimant emailed an employee of OTI to inquire about her application. She did not receive a response. On February 11, 2016, claimant emailed a senior certification specialist. The specialist responded that he could not discuss the review process with applicants. Claimant emailed both the OTI employee and the senior certification specialist on March 7, 2016, but did not receive a response from either. Sometime thereafter, claimant submitted three Graduate Coursework Verifications along with her Teachers College transcript to OTI via certified mail. On April 26, 2016, claimant called OTI regarding this submission. An employee at OTI informed her that the submitted paperwork was misplaced, and that she should submit the documents by fax. Claimant faxed the documents to OTI on May 3, 2016.
On May 4, 2016, claimant called OTI regarding the faxed documents. She was informed that the faxed documents were not accepted and that she would need to send the original copies. She sent the original copies on May 15, 2016. On July 18, 2016, claimant was informed that the original copies were lost and that she should email the forms to a supervisor. She complied, and the Graduate Coursework Verification forms were listed on her online account on August 4, 2016.
On November 10, 2016, claimant received a third "Notice of Uncompleted Requirements for Certification". When claimant contacted OTI, they informed her that the office lost the documents it had received in August 2016. Her application was disapproved. Claimant consulted legal counsel and then contacted OTI again. On December 1, 2016, she received confirmation that her certification was approved. She received her permanent teaching certification on December 2, 2016. Thereafter, she began teaching at Epic High School, where she continues to teach as of the date of the claim.
LAW AND ANALYSIS
Motion to Dismiss
Defendant seeks to dismiss the claim on the ground that it is untimely. Further, defendant argues that the claim fails to allege an accrual date as required by Court of Claims Act § 11 (b). Claimant argues that the claim is timely, and that an accrual date is properly alleged.
In order to determine whether the claim is timely, the Court must first determine the nature of the cause of action asserted by claimant, and the proper accrual date. Defendant argues that the nature of the cause of action alleged by claimant is negligence, and that the 90 day statute of limitations found in Court of Claims Act § 10 (3) applies. Claimant argues that the cause of action does not sound in negligence, and should be interpreted as a claim for breach of contract, in which case a six month statute of limitations would apple (Court of Claims Act § 10 ). The Court agrees with defendant as to the nature of the cause of action.
"In order to plead a breach of contract cause of action, a complaint must allege the provisions of the contract upon which the claim is based" (Atkinson v Mobil Oil Corp., 205 AD2d 719, 720 [2d Dept. 1994] [citation omitted]). Not only does claimant fail to identify the provisions of the contract that were allegedly breached by defendant, claimant does not allege that a contract between herself and defendant existed. The claim exposes the weakness of claimant's argument. In the first paragraph of the claim, claimant asserts that she is seeking compensation "as a result of Defendants' negligence in failing to grant her permanent certification" (Verified Claim, ¶ 2). Claimant then sets forth the factual basis of her claim, but does not once mention the existence of a contract. Lastly, where claimant sets forth her cause of action, she once again alleges that defendants were "negligent" (Verified Claim, ¶ 53). Accordingly, the Court finds that the claim asserts a cause of action sounding in negligence, and the 90-day statute of limitations contained in Court of Claims Act § 10 (3) applies.
Next, the Court must determine the appropriate accrual date by which the 90-day statute of limitations is measured. Court of Claims Act § 10 (3) requires that claims of negligence asserted against the State be filed and served upon the Attorney General within 90 days after accrual of such claim.
"[A] tort cause of action cannot accrue until an injury is sustained (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94  [citations omitted]). Thus, "accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (id., citing Jacobus v Colgate, 217 NY 235, 245 ; Roldan v Allstate Ins. Co., 149 AD2d 20, 26 [2d Dept. 1989]). Here, claimant alleges that defendant's negligent acts caused her permanent teaching certification to be denied twice.
The claim alleges that defendant denied claimant's application for a permanent teaching certification on two separate occasions. The first date that defendant disapproved claimant's application was September 21, 2015. Claimant's application was disapproved again on November 10, 2016. Thus, September 21, 2015 is the date that claimant suffered an actual injury (see Barrell v Glen Oaks Vill. Owners, Inc., 29 AD3d 612, 613 [2d Dept. 2006] [finding that a cause of action sounding in negligence accrues at the time of injury]).(2) The claim was served upon the Attorney General on June 15, 2017 nearly two years after the September 21, 2015 accrual date. Therefore, the claim is untimely and must be dismissed.
Application for Permission to File a Late Claim
Claimant now seeks permission to file a late claim. Court of Claims Act § 10 (6) requires that "[t]he claim proposed to be filed . . . shall accompany such application." Here, claimant has failed to attach her proposed claim to the application for permission to file a late claim. Thus, the Court denies claimant's application to file a late claim.
Claimant may file a subsequent motion for permission to late file a claim that includes a proposed claim which includes the correct accrual date; is otherwise compliant with Court of Claims Act § 11 (b); and is accompanied by an affidavit which addresses all of the statutory factors set forth in Court of Claims Act § 10 (6). Finally, any subsequent motion must be filed prior to the expiration of the applicable statute of limitations.
January 5, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on May 31, 2017.
2. Notice of Motion to Dismiss, dated July 18, 2017; Affirmation in Support of Motion, sworn to by Anthony Rotondi, AAG on July 18, 2017 with Exhibit A attached thereto.
3. Notice of Motion to File Late Claim, dated August 1, 2017; Petitioner's Response Affirmation in Opposition to Respondents' Motion to Dismiss and in Support of Motion for Permission to File a Late Claim, sworn to by Jordan F. Harlow, Esq. on August 1, 2017.
4. Reply Affirmation in Support of Motion to Dismiss, sworn to by Anthony Rotondi, AAG on August 23, 2017.
5. Petitioner's Reply Affirmation in Further Opposition to Respondents' Motion to Dismiss and in Further Support of Motion for Permission to File a Late Claim, sworn to by Jordan F. Harlow, Esq. on August 28, 2017.
2. Defendant disapproved claimant's application again on November 10, 2016. It is not clear from the claim whether claimant asserts two separate causes of action for negligence predicated on the two separate denials of her application. However, the Court notes that the claim would still be untimely if the statute of limitations was calculated from the November 10, 2016 date, as the claim was served on the Attorney General on June 14, 2017. Furthermore, the Court notes that the parties have both argued that December 6, 2016-the date that claimant received her permanent teaching certification-may be the proper accrual date for this claim. The Court disagrees, for the reasons stated supra, but notes that the claim would still be untimely if the statute of limitations was calculated from the December 6, 2016 date, as the claim was served on the Attorney General more than 90 days after December 6, 2016.