New York State Court of Claims

New York State Court of Claims

DRAKEFORD v. THE STATE OF NEW YORK, #2001-015-122, Claim No. 102816, Motion No. M-62650


Claim seeking equitable relief and money damages stemming from alleged criminal conduct on behalf of State Retirement System for miscalculation and withholding of claimant's benefits is dismissed for lack of jurisdiction and for failure to state a cause of action.

Case Information

JOSEPHINE DRAKEFORD By order dated October 24, 2000 this Court sua sponte amended the caption to reflect that the State of New York is the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
By order dated October 24, 2000 this Court sua sponte amended the caption to reflect that the State of New York is the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Josephine Drakeford, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 1, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment seeking an order dismissing the claim on the grounds that this Court lacks jurisdiction over the criminal charges alleged in the claim and upon the further ground that the claim fails to state a cause of action is granted. Claimant was employed in some unspecified capacity by the State of New York, possibly in the Division of Parole, for a number of years until her retirement in February, 2000. At that time she applied for retirement benefits from the New York State and Local Employees' Retirement System. Claimant's paperwork was processed and she began receiving benefits in the amount of $273.00 per month in April, 2000. She received a like amount in May, 2000 plus an adjustment of $22.59 for the period February 23, 2000 to April 30, 2000. In June, 2000 she was informed by the Retirement System that her benefits had been recalculated and she received a check for that month in the amount of $253.68. Claimant, believing that amount to be incorrect, served a claim upon the New York State Attorney General's office on July 17, 2000 and filed the claim with the Court on July 27, 2000. In the claim she alleges that the State engaged in the following violations of New York State Penal Law:
Section 190.60 Scheme to defraud in the second degree

Section 105.10 Conspiracy in the fourth degree

Section 195.00 Official misconduct

Section 175.10 Falsifying business records in the first degree

Section 145.05 Criminal mischief in the third degree

Section 175.45 Issuing a false financial statement

Section 155.30 Grand larceny in the fourth degree

Section 165.00 Misapplication of property

Section 175.20 Tampering with public records in the second degree
Without identifying any specific individuals as the perpetrators of the alleged criminal activity, claimant alleges that the State intentionally and maliciously deprived her of her rightful retirement benefits resulting in unspecified emotional and financial harm. She further alleges certain nonspecific conspiratorial conduct involving The Division of Parole and the Brooklyn District Attorney's Office.

In support of this motion defendant offered the affirmation of Steven A. Lillienstein, Assistant Counsel to the New York State and Local Employees' Retirement System. Mr. Lillienstein provided details regarding the claimant's Retirement System account including the fact that at the time of her retirement she had an outstanding loan of $4,802.33 and had applied to purchase additional service credit at a cost of $2,003.17, each of which would have an effect on the monthly benefit payable. Mr. Lillienstein alleges that on January 10, 2000 claimant faxed a request to discontinue her arrears payment and mailed a check in the amount of $4,802.33 to pay off the outstanding loan amount.

He avers that the Retirement System did not discover claimant's payment on the loan until after she filed the instant claim. Mr. Lillienstein states that upon discovery, the Retirement System recalculated claimant's monthly benefit and paid to her an adjustment reflecting the difference between the amount received and the amount actually due for the period February 23 to July 31, 2000. This recalculation, he argues, revealed that it would be to claimant's advantage to credit part of her loan payoff amount ($2,003.17) to her arrears payment and to apply the remainder ($2,799.06) to the loan balance. It is unclear whether the Retirement System obtained claimant's permission to treat her loan payment in that manner. In any event, Mr. Lillienstein alleges that claimant was informed of the Retirement System's recalculation of her annual benefit by letter dated August 4, 2000 (defendant's Exhibit 3). He further alleges that a check representing the adjustment retroactive to February 23, 2000 was issued in late August, 2000 and that her monthly benefit was adjusted to $324.21 as reflected in Exhibit 3. Finally, he asserts that claimant is currently receiving the maximum allowable benefit and is not entitled to any additional benefit.

In her opposition to the defendant's motion claimant acknowledges receipt of the adjustment but insists that she has been injured by the defendant and is entitled to compensation for her injuries.

On a motion for summary judgment the initial burden rests with the moving party to set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law, whereupon the burden is shifted to the opposing party to come forward with proof, again in evidentiary form, to show the existence of genuine triable issues of fact (Piccolo v DeCarlo, 90 AD2d 609; Greenberg v Manlon Realty, 43 AD2d 968; Iandoli v Lange, 35 AD2d 793). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient Zuckerman v City of New York, 49 NY2d 557, 562).

In this case the defendant supported the motion, in part, with the affirmation of Steven A. Lillienstein, an Assistant Counsel with the New York State and Local Employees' Retirement System who alleged that although mistakes had been made in the calculation of claimant's retirement benefits the mistakes were corrected, claimant was issued a check for the amount owed and was now receiving a correct monthly benefit.

In opposition to the motion claimant does not deny the allegations made by Mr. Lillienstein that she has been made whole by the defendant's subsequent actions. She insists, however, that she is entitled to compensation for emotional injuries which she alleges were visited upon her as a result of the Retirement System's miscalculation of her benefits. The claim, in this regard, is replete with references to the defendant's intentional conduct causing claimant emotional harm including anguish, embarrassment and humiliation. It is well established that public policy precludes maintenance of an action against the State for the intentional infliction of emotional distress where the act complained of (i.e., miscalculation of claimant's retirement benefit) constituted official conduct (see, Brown v State of New York, 125 AD2d 750, 752; Wheeler v State, 104 AD2d 496, 498). She further alleges, without citing any relevant facts or controlling legal authority, that the actions of the Retirement System and the Brooklyn District Attorney (over which this Court has no jurisdiction) amounted to criminal conduct which, in some unspecified manner, is compensable by way of money damages. Her opposition to this motion, amounting to little more than a restatement of her claim, is clearly insufficient to raise a triable issue of fact.

Finally, the Court rejects claimant's argument that the defendant's motion should be denied as premature and that discovery should be permitted. Pursuant to CPLR 3212(f) the trial court has discretion to deny a motion for summary judgment, or to order a continuance to permit affidavits to be obtained or disclosure to be had, if "facts essential to justify opposition may exist but cannot be stated." For the court to delay action on such a motion there must be a likelihood that discovery will lead to such evidence (Mazzaferro v Barterama Corp., 218 AD2d 643, 644; Frierson v Concourse Plaza Assocs., 189 AD2d 609, 610). The "mere hope" that evidence sufficient to defeat the motion may be uncovered during the discovery process is not enough (Frouws v Campbell Foundry Co., 275 AD2d 761; Mazzaferro v Barterama Corp., supra). Denial of a motion for summary judgment pursuant to CPLR 3212 (f) must be supported by something more than mere suspicion or surmise (Missouri v Boyce, 182 Misc 2d 312; Denkensohn v Davenport, 130 AD2d 860). As the Appellate Division, Third Department observed with reference to CPLR 3211 (d), a sister statute of CPLR 3212 (f), "At the very least, plaintiffs must make a 'sufficient start' and show their position 'not to be frivolous' (Herzog v Town of Thompson, 216 AD2d 801, 803, Peterson v Spartan Indus., 33 NY2d 463, 467). The instant claimant's opposing affidavit fails to make such a showing and is, therefore, insufficient to justify denial of the defendant's motion. Defendant's motion is granted and the claim is dismissed.

February 1, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 1, 2000;
  2. Affirmation of Kathleen M. Resnick dated November 1, 2000 with exhibit;
  3. Affirmation of Steven A. Lillienstein dated October 31, 2000 with exhibit;
  4. Affidavit of Josephine Drakeford sworn to November 13, 2000, with exhibits.