2) "Affirmation in Opposition" of Theresa Blais filed May 17,
Filed Papers: Claim, Verified Answer.
At a conference held on the record on April 11, 2001, the Court permitted the
Defendant to withdraw its motion to strike the note of issue and certificate of
readiness (M-63288) following Claimant's representation that certain depositions
were no longer required. The Court then adjourned the return date of the
Defendant's motion to dismiss (M-63215) and directed Claimant to file opposition
papers on or before May 31, 2001.
The Claimant is an employee of the State of New York. On May 19, 1999,
Claimant was placed on administrative leave for an act of misconduct allegedly
committed while at work. An interrogation was held on May 24, 1999. On May 25,
1999, Claimant was suspended without pay. Claimant "won" the subsequent hearing
and was reinstated, with back pay, effective August 17,
On September 9, 1999, Claimant's car
was repossessed. Claimant alleges her credit was ruined as a result of being
"unjustly" placed on leave without pay status.
The defendant asserts three grounds as the basis for its motion, i.e., the
claim is untimely, the claim fails to state a claim against the State and the
State's actions are privileged, (Resnick Affirmation, ¶¶ ).
Initially, the Court notes Defendant has set forth the affirmative defense of
untimeliness and improper service with sufficient particularity to satisfy the
requirement of section 11(c) of the Court of Claims Act, as it provides
"adequate and clear notice to any reasonable person that a defect is claimed to
exist and that it may at some point be used as the basis of a motion to dismiss"
(Sinacore v State of New York, 176 Misc 2d 1, 6; see also
Fowles v State of New York, 152 Misc 2d 837) and the affirmative defenses
also provide reference both to the relevant statute and to the requirement that
should have been met (see, Smith v State of New York, Claim No.
85799, Motion No. M-48029, filed July 20, 1993, Benza, J.).
Contrary to Defendant's assertion, the Claim did not accrue on May 19, 1999.
As of that date, Claimant still enjoyed all the emoluments of her employment,
albeit while on administrative leave. The earliest this claim could have
accrued was May 25, 1999, that being the date Claimant was suspended without
pay. However, in the Court's view, the Claim accrued on August 13, 1999 when,
Claimant had exhausted her administrative process and was somehow vindicated. In
this regard, the Court views the accrual date as being analogous to a claim of
malicious prosecution, which accrues on the date the criminal proceeding
terminates favorably for the accused (see
, CCA 10 [3-b]). Accordingly,
service on the Attorney General on November 9, 1999 was timely when measured
from August 13, 1999.
The facts of the claim as set forth above, the truth of which the Court assumes
and draws all inferences from such facts in favor of the non-moving party
(Bassile v Covenant House, 152 Misc 2d 88, affd 191 AD2d 188,
lv to app denied 82 NY2d 656), are essentially undisputed. Viewing the
instant claim in the manner required, the Court concludes that claimant has
failed to state a viable cause of action and further concludes that the Court
lacks jurisdiction to entertain the claim.
It is indisputable that "when official action involves the exercise of
discretion or expert judgment ... and is not exclusively ministerial", the State
"generally is not answerable in damages for the injurious consequences of that
action" (Haddock v City of New York, 75 NY2d 478, 484; see, Mon
v City of New York, 78 NY2d 309, 313; Arteaga v State of New York, 72
NY2d 212, 217). Absolute immunity extends to all "neutrally positioned
government officials, regardless of title, who are delegated judicial or
quasi-judicial functions" (Tarter v State of New
, 68 NY2d 511, 518). The Court does not need to reach the question of whether
the action of Defendant's employees involved in the employee disciplinary
process enjoy an absolute or qualified immunity to resolve the motion.
Claimant's bald statement that the suspension was "unjust", even under an
expansive reading of the claim, fails to implicate any basis that the decision
was an unreasoned judgment, to which immunity may not attach (see
Tango v Tulevech
, 61 NY2d 34, 41; Davis v State of New York
AD2d 112, 115; compare, Howe v Village of Trumansburg
, 199 AD2d
749, lv. denied
83 NY2d 753).
Furthermore, by virtue of her reinstatement and back pay, Claimant has received
all the relief to which she is entitled (see, Van Buskirk v
Bleiler, 46 AD2d 707, 708; see also, Harvey v State of New York, 281
AD2d 846 [limiting damages to individual removed from a preferred list]).
For the reasons set forth above, the Defendant's motion to dismiss the Claim is