New York State Court of Claims

New York State Court of Claims

WOOLLEY v. THE STATE OF NEW YORK, #2001-015-160, Claim No. 103781, Motion Nos. M-63263, M-63409


Synopsis


Purported class action pursuant to Fair Labor Standards Act (29 USC § § 201-219) must meet requirements of sections 10 and 11 of Court of Claims Act. Written consents to joinder as parties must be appended to a verified claim rather than submitted alone. Verification by two of the named claimants deemed sufficient as to other would be claimants whose consents were attached to the petition at filing pursuant to authority for representative verification under CPLR 3020 (d) (3).

Case Information

UID:
2001-015-160
Claimant(s):
ALBERT M. WOOLLEY III, JAMES A. ARRASATE JR., AND ALL OTHER PERSONS SIMILARLY SITUATED
Claimant short name:
WOOLLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103781
Motion number(s):
M-63263, M-63409
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Nancy E. Hoffman, Civil Service Employees Association, Inc. By: Robert Reilly, Esquire, of Counsel
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 2, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claimants' motion pursuant to Article 9 of the CPLR for an order permitting the claim to be maintained as a class action and the defendant's motion to dismiss the claim for lack of jurisdiction pursuant to CPLR 3211 (a) (2) and (8) will be addressed in a single decision and order. For the reasons set forth below, both the defendant's motion to dismiss and claimants' motion for class action status are denied.

The claim herein was filed on February 6, 2001 and asserts a cause of action premised upon alleged violations of the Federal Fair Labor Standards Act of 1938, as amended (29 USC § § 201-219) (hereinafter FLSA), on behalf of persons employed by the State Division of Military and Naval Affairs. The claim alleges that the claimants are employed as firefighters at air bases located in Long Island, Newburgh, Syracuse and Scotia, New York and seeks damages for "unpaid statutory overtime compensation, compensation for sleep time, compensation for meal time and related relief" including liquidated damages, attorneys fees and costs. The claim was captioned as being brought by "Albert M. Woolley III, James A. Arrasate, Jr., And All Other Persons Similarly Situated" and included verifications executed by both Messrs. Woolley and Arrasate. Attached to the claim were seventeen (17) individual documents entitled "Consent to Become a Party Claimant in a Claim Under The Fair Labor Standards Act. " Each of the two named claimants (Woolley and Arrasate) executed consents as did the following individuals: John R. Bancroft, Joseph L. Birbiglia, Jr., Kenneth M. Caron, Michael Clay, Eric D. Cohen, Timothy F. Edwards, Mark R. Fallo, Roderick O. Farmer, Paul B. Giere, James W. Gledhill, Jeffrey C. Hambsch, Thomas Michael McGarry, Jr., James S. Nizza, Anthony J. Novellino, Jr. and Thomas B. Peyton, Jr. The individual consents attached to the claim reference the claim as captioned, identifies the signer as an employee of the State of New York Division of Military and Naval Affairs and relates that as such he (or she) "worked more than 40 hours per week including meal and sleep time, in one or more weeks and, I was not paid at a rate of at least time and one half for the hours I worked in excess of 40 hours per week." Each consent form is dated and contains the signature, printed name, address and telephone number of the signer but is neither acknowledged nor verified.

Subsequent to the filing of the claim with the attached consents claimants' counsel submitted additional consent forms to the Court Clerk. These were submitted, either singly or in groups, on February 20, March 19, April 5, 17, 24, and May 2, 2001 (see, Appendix A attached hereto) but none was appended to any claim. Their status vis-a-vis the instant claim will be discussed further below.

The defendant filed its verified answer to the claim on March 20, 2001 and filed an amended verified answer on April 9, 2001. Claimants served an amended claim dated April 19, 2001 which was filed on April 23, 2001. Defendant filed a verified answer to the amended claim on May 24, 2001.

Claimants moved pursuant to CPLR Article 9 and 29 USC 216 (b) for an order authorizing the claim to be maintained as a class action, directing the defendant to provide identifying information regarding potential class members who are similarly situated to the named claimants and approving both the consent form and the issuance of a proposed notice of pendency.

The defendant then moved to dismiss the original claim filed February 6, 2001. Claimants opposed the State's motion to dismiss arguing that the motion is moot as the amended claim filed on April 23, 2001 superceded the earlier claim citing Stella v Stella, 92 AD2d 589, Lipary v Posner, 96 Misc 2d 578 and Gonzalez v John T. Mather Mem. Hosp. 147 Misc 2d 1082. It is established, however, that where an original claim filed in the Court of Claims is jurisdictionally defective, as the State alleges on its dismissal motion, the claimant may not "amend the claim as of right or with permission, so as to cure the jurisdictional defect" (Grande v State of New York, 160 Misc 2d 383, 385). Accordingly, defendant's motion to dismiss the claim is not moot and will be considered below.

Motion To Dismiss

Defendant first moves to dismiss the claim as untimely pursuant to Court of Claims Act § 10 (4) asserting that the claim was not served and filed within six (6) months of August 5, 2000, the accrual date alleged in the claim.

In the first instance it is noted that the defendant has preserved the defense of timeliness by raising it in the answer with the particularity required by Court of Claims Act § 11 (c).

The Appellate Division, Third Department, has recently addressed the issue of the State's waiver of sovereign immunity with regard to claims brought in this Court under the FLSA. In Bergmann v State of New York, ____ AD2d ____, 722 NYS2d 82, 84 the Court stated the following:
As applied to the matter before us, the State's waiver of sovereign immunity is found in Court of Claims Act § 8 which provides, in relevant part, that '[t]he state hereby waives its immunity from liability and action * * * and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article' (emphasis supplied). One such limitation is embodied in Court of Claims Act § 10 (4), which provides for a six-month Statute of Limitations for, inter alia, FLSA claims brought against the State. As the Court of Appeals has noted, '[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed' (Lichtenstein v State of New York, 93 NY2d 911, 913, quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724). As claimant plainly failed to comply with the time limitations set forth in Court of Claims Act § 10(4), his claim was properly dismissed.
Thus, it is clear that to be jurisdictionally viable an FLSA claim must be timely commenced pursuant to Court of Claims Act § 10 (4) which provides:
4. A claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed and served upon the attorney general within six months after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after such accrual.
In Bergmann Judge McNamara had concluded that the portions of the claim which accrued more than six (6) months prior to the filing of the claim on December 26, 1997 were time barred. A similar conclusion was reached by this Court in Alston v State of New York, ____ AD2d ____, 722 NYS2d 85. While it is clear that timely service and filing of a claim or service of a notice of intention is a jurisdictional prerequisite in the Court of Claims (see, Selkirk v State of New York, 249 AD2d 818) where, as here, it is alleged that damages are continuing, dismissal is appropriate only as to that portion of the claim accruing more than six months prior to filing (see also, Speers v State of New York, 183 Misc 2d 907). "A continuous course of conduct extends the accrual period of a claim until such conduct terminates" (Mahoney v Temporary Commn. of Investigation of State of N.Y., 165 AD2d 233, 240) so long as the claim is "predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" (Selkirk v State of New York, supra at 819).

As the claimants have clearly alleged a persisting failure on the part of the State of New York to comply with the provisions of the FLSA and that damages continue to accrue as a result of such failure the claim is timely as to damages incurred on or after August 6, 2000, the date delineating the six (6) month period preceding the service and filing of the claim on February 6, 2001.

Defendant further alleges that the instant claim is jurisdictionally defective in that it fails to fix the time when and identify the place where the claim arose, the nature of the claim, the items of damage or injuries claimed to have been sustained and the total sum claimed, as required by Court of Claims Act § 11 (b). "Court of Claims Act § 11 (b) requires that the notice of intention and the claim must state 'the place where such claim arose'. In essence, there must be a sufficiently detailed description to enable the State to investigate the claim and promptly ascertain the existence and extent of its liability"(Riefler v State of New York, 228 AD2d 1000, 1001). Substantial compliance with the requirements of section 11 (b) is required and such may be achieved where the information contained in a claim or notice of intention is adequate to permit the State to promptly investigate the claim and determine its liability without being misled, deceived or prejudiced (Grumet v State of New York , 256 AD2d 441). The claim filed in this case indicates that the firefighters named in the caption of the claim or whose consents were attached thereto were employed by the State's Division of Military and Naval Affairs at one of four air bases within the State and were continuously denied compensation for meal time, sleep time and overtime in conjunction with such employment beginning August 5, 2000. These allegations are sufficient to permit the State to investigate and do not mislead, deceive or prejudice the State (Grumet v State of New York, supra). As this Court recognized in Speers v State of New York, 183 Misc 2d 907, 914 "[s]ince the FLSA requires the defendant as employer to keep all records concerning the incurring of overtime, the defendant was in a position to investigate these claims if it met its obligation under the Federal legislation." The same would be true in the instant case involving the State's Division of Military and Naval Affairs.

As to the issue of damages, the defendant's attorney has not cited any authority for the proposition that the averaging of damages as set forth in the claim, including the total sum claimed, constitutes a basis for the claim's dismissal. The damages sought are stated in paragraphs 64-73 of the claim as follows:
64. Because Respondent cannot exclude sleep time and meal time from Claimants' compensable time, that sleep time and meal time is compensable time under the Fair Labor Standards Act.

65. Each claimant's schedule varies from week to week.

66. On average, each Claimant works fifty-three (53) hours per week including twenty and one-half (20.5) hours of compensable sleep and meal time.

67. Thus, on average, Claimants are damaged by not being compensated for twenty and one-half (20.5) hours per week.

68. Thus, on average, each Claimant is damaged by approximately $348.50 per week at the straight time rate.

69. Thus, on average, the Claimant class is damaged by approximately $34,850.00 per week at the straight time rate.

70. For the last six months, the Claimant class, on average, is damaged by approximately $453,050.00 at the straight time rate.

71. Adding an additional equal amount as liquidated damages totals approximately $906,100.00 of damages at the straight time rate for the Claimant class.

72. The amount of damages at the overtime rate is approximately $679,575.00 for the Claimant class.

73. The total amount of damages and liquidated damages at the overtime rate is approximately $1,359,150.00 for the Claimant class.
Under the circumstances presented, including the fact that claimants allege continuing violations of the FLSA, the Court finds that the claimants herein have adequately stated the items of damage sustained and the total sum claimed for purposes of Court of Claims Act § 11 (b). As a result, the Court finds that the claim complies with the requirements of Court of Claims Act § 11 (b) with regard to the statement of damages required thereby.

Finally, the defendant seeks dismissal of the claim due to the claimants' failure to attach verifications to the claim by anyone other than claimants Woolley and Arrasate. The final sentence of section 11 (b) of the Court of Claims Act states "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court." Verification of a complaint (and other pleadings) in a Supreme Court action is governed by CPLR § 3020 which in subdivision (d) provides "[t]he verification of a pleading shall be made by the affidavit of the party, or, if two or more parties united in interest are pleading together, by at least one of them who is acquainted with the facts . . . ."

In Martin v State of New York, 185 Misc 2d 799, Judge Corbett dismissed a claim which was unverified finding the verification requirement to be jurisdictional in nature. While this Court has no doubt as to the correctness of the holding in Martin it is instructive to note that Judge Corbett reflects in a footnote that the claimant could have, but did not, utilize the provisions of CPLR § 3020 (d) (3) to effect verification of the claim and thereby satisfy the jurisdictional requirements of Court of Claims Act § 11 (b).

The unity of interest required by CPLR § 3020 (d) "refers to the identity of legal rights and interests" of the claimants and, should such identity of rights and interests be present, a single verification will suffice in Supreme Court (Betzler v Carey, 109 Misc 2d 881, 886 affd 91 AD2d 1116, appeal denied 59 NY2d 601). In this case, the document filed and served by the claimants applied equally to the named claimants Woolley and Arrasate as well as each one of the fifteen other individuals whose signed consent forms were a part thereof. As a whole, the document met the requirements of Court of Claims Act § 11 (b) by setting forth the time when and place where the claim accrued, its nature and the damages sustained, including the total amount claimed. As the claim was verified by Messrs. Woolley and Arrasate the verification is effective as to each claimant united in interest with them pursuant to CPLR § 3020 (d) (see, Hood v State of New York, 113 Misc 404, 407-408, cf, Vogel v State of New York, 187 Misc 2d 186). The defendant's motion to dismiss is, therefore, in all respects denied.

Class Action

Motions seeking an order determining that a claim filed in this Court may be treated as a class action are rare, a circumstance traceable to the filing and service requirements of section 11 and those pertaining to a claim's timeliness contained in section 10 of the Court of Claims Act which constitute jurisdictional prerequisites to suit (Finnerty v New York State Thruway Auth., 75 NY2d 721; De Marco v State of New York, 43 AD2d 786 affd, 37 NY2d 735) which must be strictly construed unless waived pursuant to section 11 (c). As related earlier, no such waiver is at issue here.

In an unpublished decision and order on a class action motion former Judge Hanifin of this Court in Brown v State of New York, Ct. Cl., July 24, 1997 [Claim No. 86979] accepted the proposition that a class action is available in the Court of Claims but, in addition, observed:
Although there is little question that a class action may be maintained in the Court of Claims (see, Bertoldi v State of New York, 164 Misc 2d 581; Diaz v State of New York, Court of Claims, BENZA, J., Claim No. 87034, Motion No. M-48132, Cross-Motion No. CM-48145, filed 2/4/94; St. Paul Fire and Marine Ins. Co., supra), a question arises as to whether or not each claimant in a proposed class must serve and file a claim or be named as a party Claimant in a served and filed Claim, as required by the Court of Claims Act (see Section 10) as a precondition to joining the class, or may, instead, be joined in a class after such a class has been certified, without ever personally appearing as a named claimant in a timely served and filed claim.
After reviewing Judge Weisberg's finding that class actions could be maintained in the Court of Claims (Bertoldi v State of New York, supra) and carefully analyzing class action certification in actions brought under General Municipal Law 50-i and 50-e (Eisner v City of New York, 118 Misc 2d 672; Hoerger v Board of Educ. of Great Neck Union Free School Dist., 98 AD2d 274) Judge Hanifin concluded:
[I]n this Court's view, in order to be joined in a certified class in this Court, a person must be a named claimant in a filed claim. Although the Court agrees with Judge Weisberg's conclusions in Bertoldi with regard to procedural aspects of bringing a class action in the Court of Claims and further agrees that class actions can be entertained by the Court of Claims, the fact remains that, if this Court were to permit joinder of individuals similarly situated in the single pending Claim as certified class members, it would be viewing the filing and service requirements of the Court of Claims Act as not jurisdictional and it would not be strictly construing them. Stated otherwise, if the legislature intended the filing and service requirements of the Court of Claims Act to apply to all actions except class actions, it presumably would have said so.
Judge Hanifin concluded by certifying as a class the 67 individuals named in the title and identified in an appendix to a Notice of Intention filed on November 25, 1992 which was accorded treatment as a claim pursuant to Court of Claims Act § 10 (8) (a).[1] With regard to potential members of the class not specifically named in the notice of intention Judge Hanifin found "each must either individually, or joined together and specifically named, seek permission to late file pursuant to Court of Claims Act § 10(6) before April 26, 1998, if they wish to pursue a remedy in this Court" (Id, at 37). The Appellate Division, Third Department, affirmed certification of the class stating in Brown v State of New York, 250 AD2d 314, 319-320):
We next reject the State's contention that the claims asserted by claimants do not meet the statutory prerequisites for class certification. The determination of whether to grant class action status lies in the sound discretion of the trial court (see, CPLR 901 [a] [5]; Lauer v New York Tel. Co., 231 AD2d 126, 130). Notably, CPLR article 9 is to be liberally construed (see, Matter of Colt Indus. Shareholder Litig., 155 AD2d 154, 158-159, mod on other grounds 77 NY2d 185) and any error should be resolved in favor of allowing the class action (see, Lauer v New York Tel. Co., supra at 130). Here the Court of Claims properly exercised its discretion when it concluded that claimants satisfied all the requisite criteria detailed in CPLR 901 (a).
The Court of Appeals modified and affirmed the decision of the Third Department but did not directly address the issue of class certification.

A close reading of Judge Hanifin's decision regarding the class certified in that case reveals that it is not a true class action which was approved, that is, an action brought in the name of a representative person or persons on behalf of themselves and others similarly situated. The "class" in Brown rather, is composed of multiple named claimants each of whom satisfied the jurisdictional requirements of article 2 of the Court of Claims Act. Excluded from the class were potential members whose names did not appear in the notice of intention deemed a claim since they could not be found to have initiated a claim and were not, therefore, subject to the Court's jurisdiction.

It must be said that the utility, if not the viability, of a class action in the Court of Claims is subject to fundamental question. The jurisdictional imperatives regarding timely service and filing of a claim contained in article 2 would, it appears to this Court, act to preclude the maintenance of a truly representative action. Nonetheless, the Court will consider entitlement to class certification for those seventeen individual claimants joining in the filed claim in light of the Third Department's holding in Brown v State of New York, supra.

Article 9 of the CPLR governs the bringing and maintenance of class actions and CPLR § 901 (a) establishes the following five (5) prerequisites to such an action:
a. One or more members of a class may sue or be sued as representative parties on behalf of all if:

1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;

3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;

4. the representative parties will fairly and adequately protect the interest of the class; and

5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
"Whether a lawsuit qualifies as a class action matter is a determination made upon a review of the statutory criteria as applied to the facts presented; it ordinarily rests within the sound discretion of the trial court" (Small v Lorillard Tobacco Co., 94 NY2d 43, 52). All five of the conditions stated in CPLR § 901 (a) must be satisfied before class action status will be accorded (Lamboy, Matter of, v Gross, 129 Misc 2d 564, affd 126 AD2d 265). The provisions of CPLR article 9 are to be liberally construed and questions concerning applications for class action status should be disposed of in favor of allowing the action (Lauer v New York Tel. Co., 231 AD2d 126).

In applying the statutory criteria to the facts of this case the Court finds that common questions of law and fact predominate [§ 901 (a) (2)], the claims of the purported representative parties are typical of the class [§ 901 (a) (3)] and that the representatives will fairly and adequately protect the interest of the class [§ 901 (a) (4)]. The remaining issues of class numerosity and the superiority of a class action in achieving a fair and efficient disposition of the controversy have not, however, been established.

As to numerosity, there is no mechanical test to determining whether a putative class is so numerous that joinder of its members is impracticable and any such judgment must necessarily rest on the particular facts presented (Friar v Vanguard Holding Corp., 78 AD2d 83).

The seventeen (17) claimants herein clearly do not constitute so numerous a class as to prevent or inhibit joinder. Even were the Court to consider, on this motion, the assertion that the potential class of claimants could total up to one hundred individuals it does not appear that the pre-condition to class certification contained in CPLR § 901 (a) (1) would be met. Each potential class member is known and is employed as an airport firefighter at one of only four air bases within the State. Further, in light of the nature and value of the claims asserted and the provisions of Court of Claims Act § 27 prohibiting the imposition of fees or costs it cannot be said that the claims are incapable of being litigated except as a class action (Godwin Realty Assocs. v CATV Enters., 275 AD2d 269).

Nor have claimants established the superiority of a class action in adjudicating the instant controversy. In this respect the Court notes that Court of Claims Act § 9(5) provides that the Court may "order two or more claims growing out of the same set of facts to be tried or heard together, with or without consolidation, whenever it can be done without prejudice to a substantial right." This provision of the Court of Claims Act provides a direct and efficient means for the joint management of related individual claims which renders unnecessary class action status under the facts of this case. For the reasons stated herein, claimants' motion for class certification pursuant to CPLR article 9 is denied.

In conclusion the Court finds that the consents to become party claimants attached to the original claim of Messrs. Woolley and Arrasate, when read together with the verified claim, are sufficient to allow the claim to go forward in the names of those individuals who were either named in the claim or whose consents were attached to the claim when filed and the Court directs that the title of the claim be amended accordingly. The Court further finds that it is without jurisdiction as to those individuals whose consents were submitted to the Court subsequent to the filing of the claim on February 6, 2001 and to which no verified claim was attached. Jurisdiction will attach only at such time as they become part of a verified claim, either individually or collectively, which is served and filed in conformance with the prerequisites to suit contained in article 2 of the Court of Claims Act (see, Selkirk v State of New York, 249 AD2d 818). Since the violations of the Fair Labor Standards Act are alleged to be "continuing" late claim relief is unnecessary for damages accruing within six months prior to filing. As to damages accruing prior to that date, late claim relief would appear to be required before any such claim could be filed on behalf of those individuals.



July 2, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

  1. Notice of motion, M-63263, dated March 15, 2001 with exhibits;
  2. Affirmation of Robert Reilly dated March 15, 2001;
  3. Affidavit of George Kalamaras sworn to March 14, 2001;
  4. Affirmation of Kevan J. Acton dated April 11, 2001;
  5. Affirmation of Robert Reilly dated April 17, 2001;
  6. Notice of motion, M-63409, dated April 19, 2001;
  7. Affirmation of Kevan J. Acton dated April 19, 2001;
  8. Affirmation in opposition of Robert Reilly dated April 30, 2001 with exhibits;
  9. Affidavit in reply of Amee Camp sworn to April 30, 2001 with exhibit.



Appendix A

Consents not appended to a claim and their respective dates of submission:

February 20, 2001

George Kalamaras


March 19, 2001

Timothy J. Ippolito


April 5, 2001

John T. Bell, Jr.

David W. Boswell

Neil F. Caputo

Sean T. Davis

Joseph R. Dearborn, Jr.

Paul W. Dempsey

Edward Eshleman

Mac D. Feinman

Robert F. Gallo

Frank M. Girodano

Joseph Hamilton

Robert Hansen

David Holdampf

Michael R. Lamp

Terence McKenna

Karl A. Millsapugh

Brent A. Norman

Reynold R. Randolph

Marion Scaduto, III

Carl J. Swenson, III

Richard T. Tuttle

Timothy J. Willis


April 17, 2001

Robert B. Winslow


April 24, 2001

Brian P. Connelly


May 2, 2001

Timothy Bak

James J. Brody

Donald C. Fornal

James M. Heaney

Patrick A. Hoellich

Dean Peck

Joel T. Ritson


[1]The Court of Claims Act no longer requires that a notice of intention be filed (L. 1995, ch. 466). As to treatment of a notice of intention as a claim, (compare Konviser v State of New York, 180 Misc 2d 174; Muller v State of New York, 184 Misc 2d 500.