New York State Court of Claims

New York State Court of Claims

WEINSTEIN v. THE STATE OF NEW YORK, #2000-011-519, Claim No. 99781, Motion No. M-61427


Synopsis


Defendants have moved to dismiss the claim on the basis that it was not timely filed.

Case Information

UID:
2000-011-519
Claimant(s):
DONALD WEINSTEIN
Claimant short name:
WEINSTEIN
Footnote (claimant name) :

Defendant(s):
STATE UNIVERSITY OF NEW YORK, STATE UNIVERSITY OF NEW YORK AT NEW PALTZ, PHILIP SCHMIDT, ROGER BOWEN and IRENE M. LOBER
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99781
Motion number(s):
M-61427
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Cary Scott Goldinger, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Saul Aronson, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
April 17, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendants have moved to dismiss the claim on the basis that it was not timely filed. The claim alleges causes of action for violation of the Human Rights Law, intentional and negligent infliction of emotional distress, negligent hiring, negligent supervision and breach of contract. The claim arises from incidents which occurred while Claimant was employed as an Associate Professor at the State University of New York at New Paltz. The action was originally brought in Supreme Court, Nassau County. In January 1999, Supreme Court dismissed a portion of the action and ordered the remainder transferred to this court (Weinstein v State University of New York, Supreme Court, Nassau County, Index No. 028087/97, January 19, 1999, Segal, J.).

Though Claimant maintains that the order of Supreme Court transferring the action here preserved the causes of action alleged against the named individual defendants, this court is clearly without jurisdiction over such claims and therefore, any claim asserted against the named individual defendants is dismissed (see, Court of Claims Act §9). In addition, the State University of New York and the State University of New York at New Paltz are not separate legal entities and exist only as part of the sovereign State of New York (Education Law §352).

Under Court of Claims Act §10(3), a claim based upon an unintentional tort must be served and filed within ninety days of accrual unless a notice of intention is served within that time and then the claim may be served and filed within two years of accrual. A claim for damages based upon an intentional tort must also be served and filed within ninety days of accrual unless a notice of intention to file a claim is served within that time in which event the claim must be served and filed within one year after accrual (Court of Claims Act §§10[3-b]). Finally, section 10(4) of the Act provides that a claim for breach of contract shall be served and filed within six months of accrual of such claim unless a notice of intention is served within that time in which event a claim must be served and filed within two years after accrual.

In September 1993, Claimant began employment as an Associate Professor in the Department of Educational Administration at the State University of New York at New Paltz. He alleges that six weeks later he began to notice improprieties in the administration which resulted in poor management of the Department by its Chairperson. According to Claimant, he complained about these improprieties to the Dean of the college and when the Chairperson learned of the complaint, she threatened to blackball Claimant. Claimant alleges that he also noticed certain improprieties were being committed by the Dean and brought these to the attention of the President of the college. Thereafter, according to Claimant, he was denied tenure solely on the basis of the complaints he had made.

On November 12, 1996, Claimant served on the State a document titled "Notice of Claim" but no corresponding document was filed with the Court of Claims. The State apparently treated the document as a notice of intention to file a claim as no answer was served (see Court of Claims Act §§10 and 11). In September 1997, a verified complaint, identical to the one later filed in this court, was drafted and thereafter was served on the defendants. That action was filed in Supreme Court, Nassau County. In a letter to the attorney for the Claimant dated December 11, 1997, the Attorney General's office advised that because the claim was for monetary damages the Supreme Court did not have jurisdiction over the matter. Commencement of an action in the Court of Claims was suggested. Claimant failed to follow that advice.

In July 1998, the defendants in the Supreme Court action served a motion to dismiss. That motion resulted in an order by the court in which it determined that the complaint was legally insufficient insofar as it attempted to set forth a cause of action under the Human Rights Law or the Whistle Blower Law (Weinstein v State University of New York, Supreme Court, Nassau County, Index No. 028087/97, January 19, 1999, Segal, J.). The court went on to find that because the remaining causes of action sought monetary damages only, the matter had to be heard in the Court of Claims. After concluding that the plaintiff had "preserved the jurisdiction of the Court of Claims by timely filing a Notice of Claim", the court ordered the claim transferred here. On February 10, 1999, Claimant filed a "Verified Complaint" with the clerk of this court. In its verified answer filed on March 4, 1999, the Defendant raised among other affirmative defenses, the failure to serve and file a claim within ninety days of accrual and failure to serve and file a claim within two years of accrual although a notice of intention was served.

Putting aside that the claim does not allege facts from which the court could determine the date of accrual of each cause of action alleged (see Court of Claims Act §11; Park v State of New York, 226 AD2d 153, pleading requirements of section 11 are jurisdictional in nature), Supreme Court in its decision indicated that Claimant tendered his resignation on March 21, 1995, effective August 31, 1996, the last day of his contract. Therefore, August 31, 1996 represents the latest possible date of accrual for any of the causes of action alleged. Although a notice of intention to file a claim was served within ninety days of that date, no claim was filed with this court until nearly two and an half years later. Consequently, the claim is untimely under the provisions of section 10 of the Court of Claims Act.

The argument by Claimant that the claim is timely based on the transfer from Supreme Court is without merit. The power of Supreme Court to transfer a claim to another court is conditioned upon the transferee court having jurisdiction over the claim (Nish v Town of Poestenkill, 179 AD2d 929). The transfer, therefore, cannot cure the jurisdictional defect created by Claimant's failure to timely serve and file the claim (Nish v Town of Poestenkill, supra). The order of Supreme Court transferring the claim was, therefore, without effect.

The motion is granted and the claim is dismissed.

April 17, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion to Dismiss dated March 23, 2000.
  2. Affirmation of Saul Aronson, Esq., dated March 23, 2000 with exhibits attached.
  3. Affirmation of Cary Scott Goldinger, Esq. dated April 6, 2000 with exhibits attached.