New York State Court of Claims

New York State Court of Claims

Skiptunas v. THE STATE OF NEW YORK, #2000-015-103, Claim No. 102744, Motion No. M-62254


School superintendent's claim for intentional tort and negligence in conjunction with moral character proceeding initiated by Commissioner of Elections dismissed as untimely pursuant to Court of Claims Act § § 10 (3) and 10 (3-b).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
This Court by scheduling order dated October 24, 2000 sua sponte amended the caption of this action to delete all named defendants over which this Court has no jurisdiction and to name the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
O'Hara and O'ConnellBy: Stephen J. Clar, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 20, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion to dismiss the claim pursuant to CPLR 3211(a) (2) and (8) asserting the claimant's failure to timely serve and file the claim herein is granted. The instant claim was filed on July 14, 2000 and sets forth causes of action for negligence, malicious prosecution and intentional and negligent infliction of emotional distress arising from a proceeding initiated by the State Department of Education pursuant to 8 NYCRR part 83.

In order to fully address the timeliness of this claim it is necessary to consider the underlying facts as they occurred. In October 1994 the Middletown School District received a complaint concerning an alleged relationship which had developed between a probationary teacher and one of his minor students. The District conducted an investigation and concluded that there had been no sexual contact at that point in time. The teacher was given the option of resigning or having his appointment terminated. He resigned on October 23, 1994. After his resignation the teacher and student engaged in a sexual relationship which resulted in the former teacher's arrest in December of 1994. He pled guilty to a charge of rape in the third degree in May 1995.

Pursuant to 8 NYCRR part 83, claimant, as the chief school administrator, was required to report to the Department's professional conduct officer any information regarding an individual holding a teaching certificate who was convicted of a crime or who committed an act of such a nature as to raise a reasonable question as to the certified individual's moral character. Claimant did not report the information regarding the subject teacher until November 7, 1995, more than one year after accepting the teacher's resignation and six months after the teacher's plea and conviction.

Due to claimant's delay in reporting the information regarding the teacher, the Education Department initiated an investigation of the claimant's moral character pursuant to 8 NYCRR part 83. The investigation, conducted by a senior professional conduct investigator and alleged herein by claimant to have been negligently performed, resulted in a report to the Teacher Education, Certification and Practice Board which approved charges against the claimant pursuant to section 83.3 of 8 NYCRR. Information regarding the charges was released to the news media and reported in the New York Times and the Middletown Times Herald Record newspapers. Claimant alleges that he was terminated as an adjunct associate professor at SUNY New Paltz as a result of the publicity engendered by the part 83 proceeding.

Claimant thereafter requested a hearing. A hearing panel composed of a hearing officer and three other members was chosen pursuant to section 83.4 of the Department's regulations. The panel, by report dated October 22, 1996, (Exhibit A) concluded that the State had failed to meet its burden of proof and that the allegations failed to raise a substantial question with respect to the claimant's moral character. The panel recommended that the charges be dismissed and the proceeding discontinued.

8 NYCRR § 83.5 provides an appeal mechanism for a certified individual subject to a part 83 proceeding and an alternative review mechanism to be used by the Commissioner if he or she is dissatisfied with the panel's findings and recommendations. Any appeal or review must be initiated within 30 days of receipt of notification of the findings and recommendations of the hearing officer or hearing panel as the case may be.

Paragraph (c) of this section specifically provides, in relevant part, as follows:
If no appeal is taken by a certified individual or applicant within the time prescribed in this section, and no review proceeding has been commenced by the commissioner, the conclusion of the hearing officer or the hearing panel shall be final and in the case of an annulment or suspension of a certificate, the commissioner shall issue an order to that effect.
Claimant, of course, did not appeal the panel's favorable determination and the Commissioner of Education did not institute a review proceeding. Furthermore, since the panel had not recommended annulment or suspension of the claimant's teaching or administrative certification the Commissioner was not required to issue an order pursuant to paragraph (c).

By memorandum dated December 16, 1996 the Commissioner of Education advised district superintendents and superintendents of schools across New York State that he accepted the panel's recommendation with regard to an unnamed superintendent charged pursuant to part 83 (see, Exhibit B) but cautioned the superintendents to be vigilant regarding the reporting requirements imposed by the Department's regulations.

Claimant, being dissatisfied with the memorandum expressing the Commissioner's public acceptance of the panel's recommendation, demanded by letter dated May 27, 1998 (Exhibit C) that the Commissioner issue an order formally terminating the proceeding against the claimant and threatened to sue if an order was not forthcoming. Counsel for the Education Department responded by letter dated June 10, 1998 (Exhibit D). Counsel advised that an order was not required to implement or give effect to the panel's determination pursuant to 8 NYCRR § 83.5(c) and informed claimant's counsel that such an order would have been required only if the panel had recommended annulment or suspension of claimant's certification and the Commissioner were adopting that recommendation. The letter further advised that claimant had been exonerated of all charges, that his administrative record was clean, that his license continued in effect and that the part 83 proceeding was closed.

In response to the Department's June 10, 1998 letter, claimant commenced a lawsuit in Federal District Court on November 23, 1998 challenging part 83 of the Education Department's regulations as unconstitutionally vague. The action was assigned to the Honorable Frederick J. Scullin, Jr. who, by a decision and order filed on January 5, 2000, found no merit to the federal claims and declined to exercise jurisdiction over certain unspecified state claims pursuant to 28 USC § 1367(c)(3). Claimant filed the instant claim in this Court on July 14, 2000.

The claim asserts separate causes of action for malicious prosecution, negligent investigation and intentional and negligent infliction of emotional distress. Claimant seeks $500,000 in compensatory damages, punitive damages and attorney's fees pursuant to 42 USC § 1988 (sic).

Initially, the Court notes that neither punitive damages (Sharapata v Town of Islip, 56 NY2d 332) nor attorney's fees (Court of Claims Act § 27; see, Mihileas v State of New York, 266 AD2d 866) are recoverable against the State in an action brought in the Court of Claims.

For purposes of this CPLR 3211 (a) (5) pre-answer motion to dismiss, the Court will assume the truth of the facts as alleged by the claimant and draw all inferences from such facts in favor of the non-moving party (Bassile v Covenant House, 152 Misc 2d 88, affd 191 AD2d 188, lv to app denied 82 NY2d 656).

The timeliness of this claim is governed by section 10 of the Court of Claims Act and must be measured from the date on which the specific causes of action accrued. Claimant alleges that this claim did not accrue until June 10, 1998[1], the date of the letter from the Education Department's Counsel advising claimant's attorney that the Commissioner would not be issuing an order as a result of the part 83 hearing. Defendant's counsel, on the other hand, asserts that the accrual date was October 22, 1996, the date on which the four member hearing panel issued its findings and recommendations. This Court finds that neither of these dates is correct. Pursuant to paragraph (c) of section 83.5 of the regulations (supra) either claimant or the Commissioner could seek appeal or review of the panel's findings and recommendations within 30 days of receipt of notification of such findings. The accrual date would, therefore, include the 30 day administrative appeal period plus a reasonable time for delivery and receipt of the findings and recommendations of the panel by both the Commissioner and the claimant. For purposes of this motion the Court will fix the accrual date as November 27, 1996 which includes the thirty day appeal period and an additional five days for delivery of the panel's report.

Pursuant to Court of Claims Act § 10 (3-b), absent service of a notice of intention on the Attorney General, a circumstance not alleged herein, any claim seeking to recover for an intentional tort[2]of a State employee or officer must be filed and served within 90 days of its accrual. In this instance, the claim for malicious prosecution was required to be filed and served no later than February 26, 1997. Likewise, pursuant to section 10 (3) of the Court of Claims Act, any claim seeking to recover for damages sustained as a result of the negligence of a State employee or officer while acting as such must be served and filed within 90 days of accrual unless a notice of intention to file a claim was served upon the Attorney General within the said 90 days and, under that circumstance, claimant would have had two years from the date of accrual to file and serve a claim. Claimant herein does not allege service of a notice of intention upon the Attorney General and thus was required to serve and file a claim within 90 days of November 27, 1996. This he failed to do.

The claimant argues in response to the instant motion that the claim was, in fact, timely because it was filed within six months following dismissal of his federal action on January 5, 2000 as permitted under CPLR § 205(a) which provides as follows:
§ 205. Termination of action

(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.
It is well established that as part of the State's waiver of immunity the time requirements set forth in section 10 of the Court of Claims Act are more than Statutes of Limitation. Indeed, they have been found to be conditions precedent to maintaining an action in this Court and are to be strictly construed (Pelnick v State of New York, 171 AD2d 734). The Court of Appeals has held that the limitations contained in Article II of the Court of Claims Act represent an integral part of the waiver of immunity, the failure to comply with which deprives this Court of jurisdiction to entertain the claim (Lichtenstein v State of New York, 93 NY2d 911, Dreger v New York State Thruway Auth., 81 NY2d 721).

In Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378 the Court of Appeals held:
Both Supreme Court and the Appellate Division (248 AD2d 463) held that the toll of CPLR 205(a), which may extend a Statute of Limitations, could not obviate the requirements of a statutory condition precedent to suit. We agree and also hold that this second action should be dismissed because the first one was dismissed 'upon the merits' (CPLR 205 [a]). Therefore, we affirm.

Case law distinguishes between a Statute of Limitations and a statutory time restriction on commencement of suit. The former merely suspends the remedy provided by a right of action but the latter conditions the existence of a right of action, thereby creating a substantive limitation on the right (see, Tanges v Heidelberg N. Am., 93 NY2d 48, 55; Romano v Romano, 19 NY2d 444, 447). Both CPLR 205 (a) and its equivalent predecessor statutes have been held to be inapplicable when the statutory time bar to the commencement of the second action falls into the latter category, as a condition precedent (Glamm v City of Amsterdam, 67 AD2d 1056, 1057, affd for reasons stated below 49 NY2d 714 ['CPLR 205 does not apply to conditions precedent']; Hill v Board of Supervisors, 119 NY 344, 347 [Code of Civil Procedure § 405 not applicable where new action did not comply with a 'condition precedent']; see also, Bernardez v Federal Deposit Ins. Corp., 104 AD2d 309, 310, affd for reasons stated below 64 NY2d 943; Carr v Yokohama Specie Bank, 272 App Div 64, affd 297 NY 674).
Clearly, sections 10 (3) and 10 (3-b) establish conditions precedent to the causes of action asserted in the instant claim. As such, the relief available by way of recommencement under CPLR § 205(a) is unavailable to the claimant under the Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, supra decision and dismissal of the claim for failure to comply with the requirements for timely service and filing of the claim is required.

Finally, claimant's counsel, in his affirmation in opposition to the instant motion, seeks to invoke the Court's discretionary authority to permit the late filing of a claim pursuant to Court of Claims Act § 10 (6). The Court declines to address the issue of late claim relief in the absence of a proper application therefor (see, Court of Claims Act § 10 (6); 22 NYCRR § § 206.8 [a], 206.9 [a]; Sciarabba v State of New York 152 AD2d 229; O'Connell Assocs. v State of New York, 176 Misc 2d 697; Hop Wah v State of New York, 137 Misc 2d 751).

November 20, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 16, 2000;
  2. Affirmation of Michele M. Walls dated August 16, 2000 with exhibit;
  3. Affirmation of Stephen J. Clar dated September 13, 2000 with exhibits;
  4. Affirmation in reply of Michele M. Walls dated September 18, 2000.

[1]See paragraph 8 of the opposing affidavit of Stephen J. Clar.
[2]Including malicious prosecution and, if legally cognizable, intentional infliction of emotional distress (see, Wheeler v State of New York, 104 AD2d 496, 498).