This is the motion of Lewis La Rocque for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed
claim, La Rocque asserts that he was wrongfully terminated from his job as a
College Assistant in the computer lab at the City College of the City University
of New York ("CUNY"). In determining whether to grant this motion, the six
factors enumerated in the Act must be considered. The factors are not
necessarily exhaustive, nor is the presence or absence of any
: whether (1) the defendant
had notice of the essential facts constituting the claim; (2) the defendant had
an opportunity to investigate the circumstances underlying the claim; (3) the
defendant was substantially prejudiced; (4) the claimant has any other
available remedy; (5) the delay was excusable and (6) the claim appears to be
The first, second and third factors -- whether the state had notice of the
essential facts, whether the state had an opportunity to investigate and whether
the state would be prejudiced by the granting of this motion are intertwined and
may be considered together. See Brewer v State of New York, 176 Misc 2d
337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). The parties do not address these
factors. However, nothing in their papers suggests that defendant was made
aware of this claim until it was served on or about July 18, 2000. Claimant
states that he was terminated from his job in February 2000, approximately 6
months earlier. However, the fact that defendant has submitted an affirmation
providing its explanation for claimant's termination suggests that defendant has
some ability to investigate and prepare defenses against the claim. La Rocque
thus satisfies the notice-opportunity-investigation factors of the Act.
On the next factor, the availability of an alternative remedy, it is undisputed
that this claim against CUNY lies solely in the Court of Claims. As to excuse,
claimant states that a representative of the "Office for the Self-Represented"
wrongly directed him to file a claim against the City of New York.
Unfamiliarity with the proper party to be sued or the statutory scheme governing
same will not excuse a late filing in this Court. See, e.g., Matter
of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d
Dept 1997); Erca v State of New York, 51 AD2d 611, 378 NYS2d 328 (3d Dept
1976), aff'd mem 42 NY2d 854, 397 NYS2d 631 (1977).
The final factor to be considered is the merit of the claim. There is a
dispute as to the reason for claimant's termination. Claimant states that he
was terminated on an unsubstantiated report of computer hacking, but was later
told that he was terminated for financial reasons so that he "would not be able
to have a fair say and they would not have to justify themselves." See
paragraph 2 of the proposed claim.
Defendant has submitted the affidavit of John H. Snyder, "Dean of Faculty and
Staff Relations/Legal Designee" at City College, who states that claimant's
employment was terminated solely because "funding on the tax-levy line ran out .
. . There is no record of discontinuance because of any disciplinary action or
any other indication involving misconduct." See ¶¶7 and 8 of the
September 6, 2000 affidavit of John H. Snyder.
Even if La Rocque's version of events is accepted as true, no cause of action
obtains, because he has alleged nothing to suggest that he falls outside the
context of an at-will employee who may be terminated at any time with or without
cause. See, e.g., Rooney v Tyson, 91 NY2d 685, 689, 674 NYS2d 616, 618
(1998) ("In New York, ‘[a]bsent an agreement establishing a fixed
duration, an employment relationship is presumed to be a hiring at will,
terminable at any time by either party' . . ." (citing Matter of De Pietris v
Union Settlement Assn., 86 NY2d 406, 410, 633 NYS2d 274 (1995)).
Matter of Santana v NYS Thruway Authority
, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) sets out a standard to
ascertain whether a claim appears meritorious: (i) the claim "must not be
patently groundless, frivolous or legally defective" and (ii) upon consideration
of the entire record, including the proposed claim and any exhibits or
affidavits, "there is reasonable cause to believe that a valid cause of action
exists." See Prusack v State of New York, 117 AD2d 729, 498 NYS2d 455
(2d Dept 1986). In view of the foregoing, La Rocque does not meet this
Accordingly, having reviewed the parties'
IT IS ORDERED that motion no.
M-62061 is denied.