New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2001-001-071, Claim No. N/A, Motion No. M-64045


Synopsis



Case Information

UID:
2001-001-071
Claimant(s):
MICHAEL CARTER The original caption of the proposed claim names the "New York State Office of Mental Retardation and Developmental Disabilities, Long Island Developmental Disabilities Service Office" and certain named individuals. The Court of Claims has no jurisdiction to hear claims against individuals or entities except the State of New York and certain other entities specified by statute; therefore, the Court, sua sponte, has amended the caption to reflect the only proper potential defendant here, the State of New York (see, Court of Claims Act § 9).
Claimant short name:
CARTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The original caption of the proposed claim names the "New York State Office of Mental Retardation and Developmental Disabilities, Long Island Developmental Disabilities Service Office" and certain named individuals. The Court of Claims has no jurisdiction to hear claims against individuals or entities except the State of New York and certain other entities specified by statute; therefore, the Court, sua sponte, has amended the caption to reflect the only proper potential defendant here, the State of New York (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-64045
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Delvis Melendez, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Anne C. Leahey, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 29, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion for permission to file a late claim pursuant to Court of Claims Act 10 (6): Notice of Motion, dated September 4 and filed September 10, 2001; Memorandum of Law in Support of an Order Allowing the Late Filing of Claim of Delvis Melendez, Esq., dated August 2001 and received September 10, 2001, with annexed Exhibits A-G; Affidavit in Support of Motion of Michael Carter, sworn to [no date given] and filed September 10, 2001; [Proposed] Claim, verified September 4 and received September 10, 2001; Memorandum of Law in Opposition to Motion to File a Late Claim of Anne C. Leahey, Esq., AAG, dated September 12 and received September 17, 2001; and Claimant's Reply to Respondent's Opposition for an Order Allowing the Late Filing of Claim, dated September 17 and received September 20, 2001.

Claimant Michael Carter ("claimant") seeks permission to file a late claim for alleged racial discrimination occurring during his attempt to contract with the Office of Mental Retardation and Developmental Disabilities for the installation of five generators ([Proposed] Claim, verified September 4 and received September 10, 2001 ["claim"], ¶¶ 3-21). Claimant alleges that he submitted a bid significantly lower than the next lowest bid and, accordingly, won the contract (claim, ¶ 6). Because the bid was so much lower, the contracts administrator, Mr. Maul, asked claimant to visit the site to insure that the work could be done for the amount bid (claim, ¶ 7). During this visit, claimant alleges, the contracting authority first discovered that he was African-American. Comments made by a representative of the contracts administrator caused claimant to believe that the contracting authority questioned whether he could competently perform the work because of his race (claim, ¶¶ 9-10; Memorandum of Law in Support of an Order Allowing the Late Filing of Claim of Delvis Melendez, Esq., dated August 2001 and received September 10, 2001, with annexed Exhibits A-G ["Claimant's Memo."], p. 6).

Upon claimant's next visit to the site, he observed someone else installing generators (claim, ¶ 11). Claimant's bid was subsequently rejected by letter dated November 29, 1999, with an explanation that the bid required agency approval by the Dormitory Authority and that the generators needed to be installed quickly as a Y2K contingency. Thus, the agency planned for its internal staff to perform the work (claim, ¶¶ 13-15; Claimant's Memo., p.7-8, Exh. C).

Claimant filed a complaint with the State Division of Human Rights on June 20, 2000 (Affidavit in Support of Motion of Michael Carter, sworn to [no date given] and filed September 10, 2001 ["Carter Aff."], ¶ 13; Claimant's Memo., p. 8-9, Exh. D). After retaining counsel for purposes of a preliminary conference in that matter, claimant learned that he had additional, "more viable," claims and that he would have to proceed by way of Court of Claims Act § 10 (6) to commence such an alternative action (Carter Aff., ¶ 14). This motion for permission to file a late claim, which alleges violations of claimant's civil rights under 42 USC § 1981, 42 USC

§ 1983 and the 14th Amendment of the US Constitution, followed.

This Court, in its discretion, can authorize the filing of a late claim "at any time 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]). In order to determine whether to grant an application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act § 10 (6): (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has

another available remedy. The Court in the exercise of its discretion balances these factors.

While the presence or absence of any one factor is not dispositive (see, Bay Terrace Co-op. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor is the apparent merit of the proposed claim (see, Plate v State of New York, 92 Misc 2d 1033). A claimant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a claimant cannot meet this low threshold and the claim is patently without merit, it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act § 10 (6) weighed in favor of claimant's request (see, Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). Here, the State of New York correctly argues that the Court of Claims lacks jurisdiction over claimant's proposed claim (Memorandum of Law in Opposition to Motion to File a Late Claim, dated September 12 and filed September 17, 2001).

First, claimant's cause of action under the Federal Constitution is not cognizable in this Court (see, Ferrer v State of New York, 172 Misc 2d 1, 5; Gill v State of New York, Ct Cl, Mignano, J., Jan. 10, 2001, # 2001-029-042).[1] Moreover, claimant's cause of action premised upon 42 USC § 1983 lies in a different venue (see, Zagarella v State of New York, 149 AD2d 503; Davis v State of New York, 124 AD2d 420): because the State cannot be considered a "person" within the meaning of 42 USC § 1983, this portion of claimant's proposed claim is not actionable in the Court of Claims (see, Monell v Department of Social Services of City of New York, 436 US 658; Ferrick v State of New York, 198 AD2d 822; Zagarella v State of New York, supra; De La Rosa v State of New York, 173 Misc 2d 1007). Finally, claimant's cause of action premised upon 42 USC § 1981 fails for the same reason: because "section 1983 provides the exclusive Federal damages remedy for violation of the rights guaranteed by section 1981 [and] [t]he State is not a person within the statute[,] it cannot be liable in an action based on section 1981" (Brown v State of New York, 89 NY2d 172, 185, citing Jett v Dallas Ind. School Dist., 491 US 701).

Even absent the proposed claim's fatal jurisdictional faults (i.e., even if the proposed claim pleaded an action premised on New York State's Human Rights Law), such a proposed action would appear to run afoul of the election of remedies doctrine. Generally, a person claiming to have been the victim of unlawful discriminatory practices may elect to pursue a remedy in either an administrative or judicial forum (see, Executive Law § 297 [9]; Marine Midland Bank, N.A. v New York State Div. Of Human Rights, 75 NY2d 240, 244). These remedies are mutually exclusive and once a choice of forum has been made, a subsequent action in the alternative forum is barred absent narrow exceptions not appearing on the face of this record (see, Executive Law § 297 [9]; Marine Midland Bank, N.A. v New York State Div. Of Human Rights, supra; Brown v State of New York, 125 AD2d 750, 752, appeal dismissed 70 NY2d 747).[2]

Based on the foregoing, the Court finds that claimant has failed to make the requisite threshold showing of merit. Accordingly, the Court denies claimant's motion for permission to file a late claim.


October 29, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]This and many other decisions of the New York State Court of Claims can be found by following the "decisions" link on its website (http://www.nyscourtofclaims.state.ny.us).
[2]The exceptions to this rule can arise when the State Division of Human Rights dismisses the complaint for "administrative convenience" or "on the grounds of untimeliness" or "on the grounds that the election of remedies is annulled" (Executive Law § 297 [9]).