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.