Skiptunas v. THE STATE OF NEW YORK, #2000-015-103, Claim No. 102744, Motion No.
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).
DR. CHARLES P. SKIPTUNAS
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
O'Hara and O'ConnellBy: Stephen J. Clar, Esquire
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
November 20, 2000
See also (multicaptioned
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
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,
, 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
) 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
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
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).
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
the Court of Claims
The Court considered the following papers:
Notice of motion dated August 16, 2000;
Affirmation of Michele M. Walls dated August 16, 2000 with exhibit;
Affirmation of Stephen J. Clar dated September 13, 2000 with exhibits;
Affirmation in reply of Michele M. Walls dated September 18, 2000.
See paragraph 8 of the opposing affidavit of
Stephen J. Clar.
Including malicious prosecution and, if
legally cognizable, intentional infliction of emotional distress (see
Wheeler v State of New York
, 104 AD2d 496, 498).