New York State Court of Claims

New York State Court of Claims
HILL v. STATE UNIVERSITY OF NEW YORK, ALFRED STATE COLLEGE OF TECHNOLOGY, # 2021-053-525, Claim No. 131591, Motion No. M-96329

Synopsis

Defendant Alfred State College's motion for summary judgment of a claim alleging breach of contract and creating a hostile work environment in violation of Executive Law 296 (1)(a) is granted and the claim is dismissed.

Case information

UID: 2021-053-525
Claimant(s): DARCY HILL
Claimant short name: HILL
Footnote (claimant name) :
Defendant(s): STATE UNIVERSITY OF NEW YORK, ALFRED STATE COLLEGE OF TECHNOLOGY
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131591
Motion number(s): M-96329
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: 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: May 25, 2021
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Darcy Hill alleges in claim no. 131591 causes of action against the defendant Alfred State College of Technology - State University of New York (Alfred) for breach of contract and for creating a hostile work environment in violation of N.Y. Executive Law 296 (1)(a).(1) Defendant moves for summary judgment. Claimant opposes the motion.

Factual Background

According to the claim (Exhibit A),(2) claimant Darcy Hill was hired by Alfred to work in the Print & Mail Services shop in January of 2014. Claimant actually began working at Alfred part-time in June 2013 (see Claimant's deposition transcript, Exhibit F, p. 29). In January 2014, she received a six month term appointment which ended on June 30, 2014 (Exhibit F, p. 15). Thereafter, Alfred renewed her contract and gave her a one year term contract which started on July 1, 2014 and ended on June 30, 2015. She then received another one year term appointment from July 1, 2015 to June 30, 2016. On or about May 2, 2016, claimant was advised that she would be offered another term appointment effective July 1, 2016 through June 30, 2017, but that this term appointment would not be renewed after June 30, 2017 (Exhibit C; Exhibit F, pp. 15-17, 21).

In May of 2014, claimant received an overall job performance rating of satisfactory. Of the five categories evaluated, however, claimant received a grade of 2, indicating improvement required, on two of the five categories, Job Knowledge / Potential and Quality and Productivity (Exhibit E). In August 2015, claimant met with Catherine Chambers, the Director of the Mail and Print shop, who discussed with her the need to reprint two jobs, the importance of quality work and the need to improve her offset printing skills. This conversation was memorialized in a counseling memo dated August 27, 2015. Claimant disagreed with several items in Ms. Chambers counseling memo and on September 1, 2015, sent a rebuttal memo to Human Resources. By a subsequent counseling memo dated September 3, 2015, Ms. Chambers referenced claimant's printing skills and advised her to ask her co-employee Brent Cobin if she needed assistance. Claimant followed up on September 8, 2015 with another rebuttal memo to Human Resources regarding Ms. Chambers' counseling memo of September 3, 2015. (see Exhibit D for copies of these memos). Ms. Chambers issued another counseling memo to claimant on January 11, 2016. (Exhibit J).(3) This memo addressed the issue of claimant removing printing rags from the shop which were considered to be hazardous material.

Beginning in September 2015, claimant filed a total of three complaints with Human Resources alleging a hostile work environment. One of her complaints dealt with an allegation of sexual harassment involving her co-worker in the print shop, Brent Cobin, with whom she had worked since she started at Alfred in June 2013 (Exhibit F, pp. 42, 45, 48). According to claimant's deposition testimony, she was sexually harassed by Brent Cobin on June 30, 2015, but felt that she could not go to her supervisor Catherine Chambers as it would be swept under the rug. Claimant testified that on June 30, 2015, Brent Cobin took a can of air spray and sprayed directly at her buttocks (Exhibit F, pp. 56-57). According to claimant, the June 30, 2015 incident was the last incident involving Brent Cobin. Prior to this incident, claimant testified that Mr. Cobin had made comments about her breasts. She did not know when these comments were made as she did not write down the dates (Exhibit F, pp. 59-61).

On September 21, 2015, a Title IX Co-ordinator's report was issued regarding claimant's complaint of sexual harassment against Brent Cobin. It was the opinion of the Title IX investigator that Mr. Cobin be found not responsible for the allegations of sexual harassment brought against him by claimant (Exhibit G).

By letter dated September 28, 2015 from Wendy Dresser-Recktenwald, Senior Director of Human Resources, claimant was advised there was insufficient evidence that she had been subjected to a hostile work environment (Exhibit G). Claimant received a second letter from Ms. Dresser-Recktenwald dated January 20, 2016, which was in response to claimant's complaint of January 8, 2016, that Ms. Chambers had retaliated against her after her initial complaint of a hostile work environment, even after Alfred had hired an external mediator. In this letter, Ms. Dresser-Recktenwald agreed that there was a significant and ongoing problem between claimant and Ms. Chambers. Human Resources did not, however, find sufficient evidence of claimant's allegations of retaliation or a hostile work environment. Human Resources agreed to reassign claimant to perform staff assistant work at a different location under a different supervisor (Exhibit G). Claimant was advised by letter dated January 22, 2016, that her new supervisor would be Jane Gilliland, Senior Director of Student Records & Financial Services (Exhibit H).

Claimant worked under Jane Gilliland from January 22, 2016 to her last day of work on June 30, 2017. At the financial services office, claimant organized old files into digital files. As of January 22, 2016, claimant no longer worked in the print shop or under the supervision of Ms. Chambers or with Brent Cobin. When claimant moved to the financial services office, her hours were approximately the same and her pay remained the same. Claimant testified that she had no problem working under Jane Gilliland and had no issue with a hostile work environment once she transferred to the financial services office (Exhibit F, pp. 67-72).

By Recommendation for Term Renewal dated May 2016, the Associate Vice President and the Vice President recommended that claimant's one year term not be renewed (Exhibit E). On May 2, 2016, claimant acknowledged that she was made aware that the Associate Vice President had recommended that her term contract not be renewed and on May 6, 2016, she acknowledged that the Vice President had recommended that her term contract not be renewed. (Exhibit E; Exhibit F, pp. 21-22). By letter dated May 20, 2016, Alfred President, Dr. Skip Sullivan offered claimant a one year term appointment effective July 1, 2016 through June 30, 2017, which claimant accepted. Claimant was advised in this letter that her term appointment would not be renewed after June 30, 2017 (Exhibit C). By the time claimant received this letter, she was already aware that her term contract would not be renewed.

On September 16, 2016, claimant filed a complaint with the EEOC in which she complained about being sexually harassed by Mr. Cobin in June of 2015 and for being subjected to a hostile work environment. According to claimant's deposition testimony, she was given a "terminal contract" which ended her employment on June 30, 2017 for protesting Ms. Chambers counseling letters by submitting her rebuttal letters of September 1, 2015 and September 8, 2015 (Exhibit F, pp. 77-79). At paragraph 20 of the opposing affirmation of claimant's counsel, it is stated that the "New York Division of Human Rights (DHR) found probable cause that gender discrimination had occurred." No evidence was submitted to corroborate this statement.

Attached to defendant's motion is the affidavit of Brent Cobin sworn to November 25, 2020 and the affidavit of Catherine Chambers sworn to December 4, 2020. In his affidavit, Mr. Cobin denied that he had been involved in an incident with a spray can on June 30, 2015 and also denied that he had made suggestive comments to claimant at some time prior to June 30, 2015. Mr. Cobin further averred that he worked with claimant in Alfred's Print and Mail Services Center from January of 2014 until on or about January 22, 2016, when claimant was transferred to the Office of Student Records & Financial Services which is located in a different building on the opposite side of the campus.

In her affidavit, Ms. Chambers, Director of Print & Mail Services at SUNY and Alfred, denied that she had caused or fostered a hostile work environment while claimant worked in her department from September 25, 2014 through January 22, 2016, when claimant was assigned to a different department. According to Ms. Chambers, she raised concerns with claimant regarding the quality of claimant's work with the offset printing press, production process and quality control procedures. On August 20, 2015, Ms. Chambers met with claimant to discuss the poor quality of her work and to express her dissatisfaction with claimant's work. This meeting was memorialized in a counseling memo (Exhibit D). On September 3, 2015, Ms. Chambers sent a second counseling memo informing claimant that her failure to comply with the counseling memo could result in disciplinary action. According to Ms. Chambers, claimant packed up an order for shipping without any of the additional quality controls required. Claimant responded to each of Ms. Chambers' counseling memos with a rebuttal letter.

Ms. Chambers stated in her affidavit that Alfred hired a trainer specifically to train claimant but that even with the additional training, her printing skills were below average. On January 11, 2016, Ms. Chambers sent claimant another counseling memo regarding claimant's improper removal of State property. Apparently, claimant was going to remove printing rags and send them to her dry cleaner. Ms. Chambers informed her that she could not remove the rags as they contained hazardous waste (Exhibit I). Ms. Chambers stated in her affidavit that claimant was transferred out of her department and assigned to the Office of Student Records and Financial Services on January 22, 2016. Ms. Chambers averred that she never again worked with claimant or had any dealings with her following her transfer. In May 2016, claimant was advised by letter from the President of Alfred that her one year contract would end on June 30, 2017 and would not be renewed. According to Ms. Chambers, claimant filed an EEOC complaint in September 2016 alleging that she had been subjected to a hostile work environment (Exhibit I). It was Ms, Chambers' understanding that claimant's complaint of a hostile work environment had not been substantiated.

Legal Analysis

Defendant moves for summary judgment dismissing the claim on the grounds: (1) that the claim is untimely; (2) that the claim fails to meet the pleading requirements of Court of Claims Act 11 (b); (3) that there is no renewal of a term contract; and (4) that the claim does not meet the statutory requirements for a hostile work environment or for a discrimination claim under Executive Law 296, commonly referred to as the Human Rights Law. Each of these grounds will be discussed separately.

Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562.). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).

The Claim is Untimely

In this motion, defendant alleges that the claim is untimely. Pursuant to Court of Claims Act 10 (3), a claim to recover damages for an unintentional tort must be filed and served upon the Attorney General within ninety days of accrual of the claim unless within the same time period, a notice of intention to file a claim is served, in which event, the claim must be filed and served within two years of accrual of the claim.

Pursuant to Court of Claims Act 10 (4), a claim for breach of an express or implied contract and any other claim not otherwise provided for must be filed and served upon the Attorney General within six months after the accrual of the claim, unless the claimant shall, within the same time period, serve a written notice of intention to file a claim, in which event, the claim shall be filed and served within two years after such accrual.

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 State of New York, 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 statutory time 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 statutory time period.

With respect to the claim brought pursuant to Executive Law 296 (1) (a), courts have disagreed as to whether the ninety day time period of Court of Claims Act 10 (3) or the six month time period of Court of Claims Act 10 (4) applies to such a claim. The Third Department in Bhagalia v State, 228 AD2d 882 (3d Dept 1996) applied the ninety day statutory time period of section 10 (3) of the Court of Claims Act, while some Court of Claims Judges have applied the six month statutory time period of the catch-all provision of section 10 (4) of the Court of Claims Act (see Benefield v State of New York, UID No. 2017-032-007 [Ct Cl, Hard, J., Aug. 18, 2017]; Clauberg v State of New York, 19 Misc 3d 942 [2008]). It makes no difference whether the ninety day or the six month statutory period is applied in this instance as the claim brought pursuant to Executive Law 296 (1) (a) is untimely under either statutory period.

No notice of intention to file a claim was served upon the Attorney General. As a result, the time within which to file and serve a claim under either Court of Claims Act 10 (3) or under 10 (4) was not extended. The claim was served upon the Attorney General by certified mail, return receipt requested on July 19, 2018 (see claim, Exhibit A). Under Executive Law 296, an alleged discriminatory act accrues on the date the discriminatory act occurred (Nat'l R.R. Passenger Corp. v Morgan, 536 US 101 [2002]). On September 9, 2015, claimant filed a complaint against her co-worker Brent Cobin alleging an incident with an air spray can that had occurred on June 30, 2015, and further alleging inappropriate comments about her breasts which occurred sometime earlier. As claim no. 131591was not served within ninety days or within six months of June 30, 2015, the latest date of an act complained of, claimant's claim for discrimination pursuant to Executive Law 296 is untimely and must be dismissed.

Claimant also alleges that she was subjected to a hostile work environment. The statute of limitations for a hostile work environment claim accrues on the date when the last discriminatory act occurred (Clark v State of New York, 302 AD2d 942 [4th Dept 2003], rearg and appeal denied 305 AD2d 1127 [4th Dept 2003]). Here, the last potential hostile act had to occur sometime before January 22, 2016, because as of that date, claimant had been transferred out of the print shop and assigned to the financial aid office where she no longer worked with Brent Cobin or under the supervision of Catherine Chambers, and where she admittedly had no problem with a hostile work environment. All of the allegations of discrimination and/or of a hostile work environment in the claim occurred more than ninety days or six months prior to the service of the claim upon the Attorney General. Thus, whether the Court applies the ninety day statutory period of Court of Claims Act 10 (3) or the six month statutory period of Court of Claims Act 10 (4), the claim under Executive Law 296 (1) (a) is untimely and must be dismissed (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]; Ivy v State of New York, supra at 1191).

Claimant also alleges a "breach of an implied covenant not to terminate employment" (see the first cause of action in the claim, Exhibit A). A claim for a breach of an implied contract must be filed and served upon the Attorney General within six months of accrual of the claim (Court of Claims Act 10 [4]). A claim for breach of contract accrues when damages are reasonably ascertainable (Richard A. Hutchens CC, L.L.C. v State of New York, 59 AD3d 766 [3d Dept 2009], lv denied 12 NY3d 712 [2009]; Greenspan Bros. v State of New York, 122 AD2d 249 [2d Dept 1986]). Applying this principle, the Court of Claims in Syrkin v State of New York, UID No. 2006-030-524 [Ct Cl, Succimarra, J., April 5, 2006] held that the claim accrued when notice was given that the Claimant therein would not be reappointed as an Assistant Professor in the Science Department of the State University of New York Maritime College and not when his current term expired. While it must be noted that the claim in Syrkin was for discrimination and not for breach of contract, Judge Succimarra made it clear in his decision that in setting the accrual at when notice of termination was received and not when employment ended, he was applying the principle that a claim accrues when damages are reasonably ascertainable (Syrkin v State of New York, at p.4.).

As early as May 2, 2016, claimant was aware that her one year term contract ending on June 30, 2017 would not be renewed. (see Exhibit E; Exhibit F, pp. 21-22; Exhibit A, 34). On that date her damages were then reasonably ascertainable. Since claimant's claim for breach of contract was not served within six months of May 2, 2016, claimant's breach of contract claim is untimely and must be dismissed. Finally, it must be noted that this result would be the same even if the Court were to use claimant's last day of employment, June 30, 2017, as the accrual date, as the claim was not served within six months of claimant's last day of employment. Regardless of the accrual date used, claimant's contract claim is untimely and must be dismissed.

At paragraphs 6 and 7 of the claim, claimant very generally alleges that the claim is also brought for negligent infliction of emotional distress and for a violation of the New York Civil Service Law 75-b, commonly referred to as the whistleblower statute. Pursuant to Court of Claims Act 10 (3), a claim for negligent infliction of emotional distress must be filed and served within ninety days of accrual of the claim. This same ninety day time period has been applied with respect to a Civil Service Law 75-b claim (Raichlin v State of New York, UID No. 2012-044-500 [Ct Cl, Schaewe, J., Jan. 23, 2012]). Regardless of whether the January 22, 2016 date, when claimant was transferred out of the print shop, or the May 2, 2016 date, when claimant was first advised that her term contract would not be renewed, or the June 30, 2017 date, claimant's last day of employment, is used, these two generally alleged claims were untimely served and must be dismissed. Accordingly, since all of the causes of action alleged in the claim are untimely, claim no. 131591 must be dismissed.

In opposition to defendant's motion, claimant argues that defendant waived its jurisdictional defenses by answering the claim and engaging in discovery. Pursuant to Court of Claims Act 11 (c), a jurisdictional defense as to the statutory time limitations is waived unless raised either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading. Here, defendant raised its jurisdictional defenses with particularity as affirmative defenses in its answer (Exhibit B). As a result, defendant did not waive its jurisdictional defenses.

The Pleading Requirements of Court of Claims Act 11 (b).

Defendant also moves to dismiss the contract claim on the grounds that the claim failed to include the "total sum claimed" as required by Court of Claims Act 11 (b). Pursuant to Court of Claims Act 11 (b), a claim must "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, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." In the twelfth affirmative defense in its answer (Exhibit B), defendant asserted that the Court lacks jurisdiction as to the contract cause of action as the claim failed to comply with the pleading requirements of Court of Claims Act 11 (b) in that the total sum claimed was not set forth in the claim. Where as here, the claim entirely lacks any amount of monetary damages, it has failed to satisfy the requirements of Court of Claims Act 11 (b) and must be dismissed (Kolnacki v State of New York, 8 NY3d 277 [2007], rearg denied 8 NY3d 994 [2007]; Kobrin v State of New York, 144 AD3d 1542 [4th Dept 2016]).

In opposition, claimant alleges that this issue should have been raised earlier. Once raised as an affirmative defense in the answer, however, this jurisdictional issue may be brought at any time as the grounds for a motion to dismiss, even as late as the beginning of trial (see Kolnacki v State of New York, supra at 279).

In addition, defendant alleges that claimant failed to plead a cause of action for negligent infliction of emotional distress or a claim under the whistleblower statute, Civil Service Law 75-b. The Court agrees. None of the pleading requirements of Court of Claims Act 11 (b) have been plead with respect to either a negligent infliction of emotional distress claim or a claim brought pursuant to the whistleblower statute. These causes of action must be dismissed.

There is No Renewal of a Term Contract

Defendant further moves for summary judgment dismissing the contract claim as there is no right of renewal of a term contract. Throughout her employment, claimant was an employee pursuant to a term appointment not longer than one year. The last one year term of her employment ended on June 30, 2017 (see May 20, 2016 letter from Alfred President, Dr. Skip Sullivan, Exhibit C). Claimant was aware that she was a term employee and not a permanent employee (Exhibit F, p. 80).

Pursuant to 8 NYCRR 335.13:

"Except as provided in this Part, term appointments may be

renewed by the chief administrative officer of the college

for successive periods of not more than three years each;

such renewals shall be reported to the chancellor. No term

appointment, of itself, shall be deemed to create any manner

of legal right, interest or expectancy in any other appointment

or renewal" (emphasis added).

Claimant worked her final one year term appointment which ended on June 30, 2017 and was paid for her time. There is no allegation and no evidence that she was ever offered another term appointment. In fact, claimant was advised on or about May 2, 2016 that her term appointment would not be renewed after June 30, 2017. Claimant failed to allege a cause of action for breach of a term contract.

In the opposing affirmation of claimant's counsel, it is alleged that the claim was brought for a breach of an implied covenant of good faith and fair dealing and that the breach of contract cause of action was never meant to be a claim for a breach of any right to a reappointment. The first cause of action in the claim, however, is entitled "Pleading a cause of action for breach of an implied covenant not to terminate employment under New York common law." In addition, in the "Prayer for Relief" portion of the claim, claimant seeks an "award for past and future lost income ..." Whatever the intention, the breach of contract claim pled was for breach of a term contract. No other breach of contract claim was pled.

The Claim Fails to Meet the Statutory Requirements of a Human Rights Law Violation

Defendant also moves for summary judgment to dismiss the claim by alleging that the claim fails to state a cause of action for hostile work environment / discrimination pursuant to Executive Law 296 (1) (a).

In order to establish a prima facie case of discrimination pursuant to the Human Rights Law, claimant must show that: "(1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). Viewing the limited evidence presented in a light most favorable to the claimant, this Court cannot conclude that this claim should be dismissed on summary judgment for failing to state a cause of action. Questions of fact remain as to whether or not claimant was qualified for her position and whether or not the decision not to renew her one year term contract occurred under circumstances giving rise to an inference of discrimination.

In order to establish a prima facie claim for a discriminatory hostile work environment, claimant has the burden of showing that the workplace was " 'permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' " (Id., at 310, quoting Harris v Forklift Sys., Inc., 510 US 17, 21[1993]). The doctrine of respondeat superior is not available under New York State law in cases involving alleged discrimination. Accordingly, claimant would have to establish that Alfred became a party to the alleged discriminatory conduct "by encouraging, condoning or approving it" (Id at 311, quoting Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 787 [1985]). Here, claimant seems to be alleging that she was subjected to a hostile work environment as her co-worker, Brent Cobin, was sexually harassing her. While Human Resources at Alfred found her complaint regarding Mr. Cobin to be unfounded and Mr. Cobin has denied claimant's allegations (see Mr. Cobin's affidavit), claimant's counsel states in his opposing affirmation that the New York Division of Human Rights found probable cause that gender discrimination had occurred (see opposing affirmation of Frank Housh, Esq. at 20). Reviewing the limited evidence presented in a light most favorable to the claimant, this Court finds sufficient questions of fact to defeat defendant's motion for summary judgment with respect to claimant's hostile work environment claim.

While this Court will not dismiss the claim on the grounds that claimant has failed to state a cause of action for hostile work environment or for discrimination under the Human Rights Law, these causes of action, as well as the breach of contract cause of action and any claim under New York State's Civil Service Law 75-b or under a theory of negligent infliction of emotional distress are dismissed as being untimely. The breach of contract cause of action is further dismissed as it is jurisdictionally deficient as there is no "sum certain" alleged in the claim. Finally, the causes of action for breach of contract, negligent infliction of emotional distress and any claim under Civil Service Law 75-b are also being dismissed for failing to state a cause of action. Accordingly, defendant's motion no. M-96329 is granted and claim no. 131591 is dismissed.

Claimant's Request for Late Claim Relief.

In the alternative, claimant argues that if this Court gives credence to defendant's jurisdictional arguments and dismisses the claim, that the Court should grant claimant late claim relief. Defendant opposes this relief as claimant's request is not properly before the Court. Motions in the Court of Claims are governed by the CPLR, by the Uniform Rules for the Court of Claims 206.8 and 206.9 and, as here, by Court of Claims Act 10 (6). Pursuant to section 206.8 of the Uniform Rules for the Court of Claims, "no motion shall be filed with the court unless a notice of motion is served and filed, with proof of service, with the motion papers." Pursuant to CPLR 2215, "a party may serve upon the moving party a notice of cross-motion demanding relief ..." Some courts have held that they lacked jurisdiction to entertain a cross motion when the moving party failed to comply with the notice provisions of the CPLR 2215 (see, e.g., Vanek v Mercy Hosp., 135 AD2d 707 [2d Dept 1987]). The Fourth Department, however, has noted that "[p]rocedural defects in the filing of a motion 'should be disregarded unless there is substantial prejudice to a party' " (Clark v State of New York, 302 AD2d 942, 944 [4th Dept 2003]; quoting National Microtech v Satellite Video Servs., 107 AD2d 860, 861, [3d Dept 1985], lv dismissed 64 NY2d 612 [1985]). Defendant has not argued that it will be substantially prejudiced if claimant's request for late claim relief was heard. Regardless, were the Court to grant claimant permission to argue a cross motion for leave to file a late claim, it does not appear that her motion would be granted.

Court of Claims Act 10 (6) provides the procedure for seeking leave to file and serve a late claim. Section 10 (6) requires that a proposed claim containing all of the information set forth in Court of Claims Act 11 (b) shall accompany an application for late claim relief. The failure to include a proposed claim is basis enough to deny movant's motion (see Davis v State of New York, 28 AD2d 609 [3d Dept 1967]). As claimant has failed to include a proposed claim, the Court will consider claim no. 131591 as the proposed claim that must accompany a motion for late claim relief.

A motion for permission to file and serve a late claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act 10 [6]). Claimant's causes of action asserting violations of the Human Rights Law (Executive Law 296) are governed by the three-year statute of limitations of CPLR 214 (2) (Koener v State of N.Y., Pilgrim Psychiatric Ctr., 62 NY2d 442 [1984]).

The accrual date of instances of discrimination are calculated from the date that the discriminatory act occurred (Nat'l R.R. Passenger Corp., 536 US supra at 110). Claimant's allegations of sexual harassment occurred on June 30, 2015 when Mr. Cobin allegedly sprayed claimant with an air spray can and earlier when he allegedly made comments about her breasts. (Exhibit F, pp. 56-61). As the last date a claim of sexual harassment or discrimination could have occurred on was June 30, 2015, claimant had three years or until June 30, 2018 within which to move for permission to late file a claim. As she failed to do so, claimant's present request for late claim relief alleging discrimination is untimely and must be denied.

A claim alleging a hostile work environment occurs over days or even years (Id. at 115). The Statute of limitations for a hostile work environment accrues on the date when the last discriminatory act occurred (Clark v State of New York, supra at 945). Here, the latest possible accrual date would be January 22, 2016, when claimant was transferred from the Print & Mail Shop to the Office of Student Records and Financial Services located across campus. As of January 22, 2016, claimant no longer reported to Catherine Chambers or worked with Brent Cobin, and by her deposition testimony was no longer subjected to a hostile work environment. Claimant had three years or until January 22, 2019 within which to move for permission to late file a claim for a hostile work environment. As she failed to do so, claimant's present request to late file a claim for a hostile work environment must be denied as untimely.

In very general terms, claimant alleges in her claim a cause of action for negligent infliction of emotional distress. A negligence cause of action is governed by a three year statute of limitations. As the last possible act of negligence had to have occurred by January 22, 2016, when claimant was transferred out of the Mail and Print Shop, any motion for permission to late file a negligence claim had to be brought by January 22, 2019 at the latest. As claimant's opposing papers were not filed within three years of any alleged negligence, claimant's request for permission to late file and serve a negligence claim is denied as being untimely.(4)

Claimant also alleges in very general terms in her claim a violation of Civil Service Law 75-b, the whistleblower statute. Assuming claimant is not subject to binding arbitration, she may bring a civil action within one year after the alleged retaliatory action was taken (Raichlin v State of New York, UID No. 2012-044-500 [Ct Cl, Schaewe, J., Jan. 23, 2012]). Presumably, the alleged retaliatory action occurred on May 2, 2016, when claimant was advised that her one year term would not be renewed after June 30, 2017. As claimant's opposing papers requesting late claim relief were not filed within one year of accrual of a claim under the whistleblower statute, claimant's proposed request for permission to serve and file a late claim under the whistleblower statute is denied as being untimely.

Finally, claimant argues that she should be permitted to late file and serve a claim based on an alleged breach of contract. A claim for a breach of contract is governed by the six year statute of limitations of CPLR 213 (2). Claimant's breach of contract claim accrued in May of 2016 when she was offered a one year term contract to commence on July 1, 2016 and to end on June 30, 2017, and told that this one year term contract would not be renewed. As claimant's request for permission to late file a breach of contract claim was brought within six years of its accrual, claimant's request is timely.

In determining whether to grant permission to late file a claim, the Court must consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy" (Court of Claims Act 10 [6]).

The first factor to be considered by the Court is whether the delay in filing the claim was excusable. Claimant offers no excuse for her failure to file and serve a timely claim other than by arguing that defendant should have moved to dismiss the claim earlier. Claimant knew or should have known that defendant was raising jurisdictional issues as such issues were raised as affirmation defenses in defendant's answer. This factor weighs against claimant's request.

The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). It is clear from the papers submitted that claimant filed three complaints with human resources which were investigated by Alfred. As Alfred had notice and an opportunity to investigate, the State would not be prejudiced by the delay in late filing a claim. These factors weigh in favor of claimant's motion. The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is Movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 [1977]). Unfortunately, claimant's breach of contract claim is jurisdictionally defective. Court of Claims Act 11 (b) requires that the claim state the "sum certain" in a breach of contract action. As claim no. 131591 is being utilized herein as the proposed claim, and lacks the sum certain required in a breach of contract claim, claimant's proposed breach of contract claim is jurisdictionally defective and would have to be dismissed if permission were granted to allow it to be served and filed late (Kobrin v State of New York, supra at 1543). While claimant argues that her claim is for a breach of an implied covenant of good faith and fair dealing, the only contract claim set forth in the claim is a "breach of an implied covenant not to terminate employment" (see the first cause of action in the claim, Exhibit A). In this regard, claimant's attorney states in his opposing affirmation, that claimant has never made a claim that a right of renewal exists or was breached in this matter. As claimant's alleged breach of contract claim is jurisdictionally defective and lacks the appearance of merit, the most important factor to consider weighs against claimant.

The Court of Claims is a court of limited jurisdiction. It does not have jurisdiction to grant equitable relief (see Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). It thus has no power to restore claimant to her former position as requested by claimant. This Court does not have the power to issue a declaration that the decision not to renew claimant's one year term contract was unlawful as requested by claimant (see Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]). In addition, punitive damages, as requested by claimant, may not be assessed against the State or its political subdivisions (Sharapata v Town of Islip, 56 NY2d 332 [1982]). As such, the claimant has failed to show that the relief she is requesting is recoverable in this Court or that her breach of contract claim has merit.

Finally, claimant argues that she has no other available remedy than resolution in this Court. To the contrary, claimant could have brought her Human Rights Law claims in Supreme Court which has the authority to award equitable and declaratory relief.

Based on the foregoing, defendant's motion for summary judgment is granted and claim no. 131591 is dismissed and claimant's informal request that this Court grant her permission to file and serve a late claim is denied.

May 25, 2021

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The Court has read and considered the following:

1. Notice of motion and affirmation of Assistant Attorney General Wendy E. Morcio dated December 4, 2020, with annexed Exhibits A-J;

2. Supporting affidavit of Brent Cobin sworn to November 25, 2020;

3. Supporting affidavit of Catherine Chambers sworn to December 4, 2020;

4. Opposing affirmation of Frank Housh, Esq. dated February 17, 2021;(5) and

5. Reply affirmation of Assistant Attorney General Wendy E. Morcio dated February 22, 2021.


1. The State University is an integral part of the government of the State of New York (State) and when it is sued, the State is the real party in interest (State Univ. of N.Y. v Syracuse Univ., 285 AD 59 (3d Dept 1954).

2. Claimant is apparently relying on defendant's exhibits as she attaches no exhibits to her motion papers. Accordingly, all references made herein are to defendant's exhibits.

3. While this memo is technically dated January 11, 2015, it was sent as a follow up to discussions between claimant and Ms. Chambers which occurred on January 4 and 5, 2016. It is therefore assumed that this letter was erroneously misdated 2015 instead of 2016.

4. While neither party makes the argument, the Court notes that the latest possible accrual date for a negligence claim or for a claim brought pursuant to the Human Rights Law would be June 30, 2017, claimant's last date of employment at Alfred. If this date was used as the accrual date, then claimant would have had three years or until June 30, 2020 to bring a motion for late claim relief under Court of Claims Act 10 (6). However, on March 20, 2020, Governor Cuomo issued Executive Order No. 202.8 which, among other things, tolled "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state" from the date of this executive order until April 19, 2020 (Executive Order No. 202.8, dated March 20, 2020 [9 NYCRR 8.202.8]). This directive was extended through successive Executive Orders, including Executive Order 202.67, which extended the toll for a final time through November 3, 2020 (Executive Order 202.67, dated October 4, 2020 [9 NYCRR 8.202.67]). Claimant's time to move for leave to file a late claim was thus extended by 228 days by reason of this toll (see Johnson v State of New York, UID No. 2021-058-006 [Ct Cl, Leahy-Scott, J., March 4, 2021)]. Accordingly, claimant had until Monday, February 15, 2021 within which to file a motion for permission to late file and serve a claim for negligence or a claim under the Human Rights Law. The affirmation of claimant's attorney which informally requests permission to late file and serve a claim was dated February 17, 2021 and it was served on Chambers on February 22, 2021. It does not appear as if the affirmation of claimant's counsel was ever filed. Accordingly, claimant's informal request to late file a negligence claim or a claim under the Human Rights Law would have to be denied as being untimely in the event claimant's last date of employment was used as the accrual date.

5. The affirmation of claimant's counsel in opposition to defendant's motion for summary judgment was received by my Chambers on February 22, 2021. A recent review of the claim's Docket Sheet reveals that counsel's affirmation was apparently never filed with the Clerk of the Court in Albany.