New York State Court of Claims

New York State Court of Claims

ROSENFELD v. THE STATE OF NEW YORK, #2002-010-044, Claim No. 105659, Motion Nos. M-65262, CM-65463


Synopsis


Claimant's motion to strike defendant's affirmative defenses is denied and defendant's cross-motion to dismiss is granted.

Case Information

UID:
2002-010-044
Claimant(s):
HARVEY JAY ROSENFELD The Court has, sua sponte, amended the caption to reflect the proper party defendant.
Claimant short name:
ROSENFELD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105659
Motion number(s):
M-65262
Cross-motion number(s):
CM-65463
Judge:
Terry Jane Ruderman
Claimant's attorney:
HARVEY JAY ROSENFELDPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion to strike defendant's affirmative defenses one through eight and defendant's cross-motion to dismiss:
Notice of Motion, Claimant's Supporting Affidavit................................................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............2

Claim No. 105659 alleges that at 12:00 noon on November 28, 2001, in the City Court of Mount Vernon, the Office of Court Administration:
"was prejudicial in its' [sic] hiring and discriminated against me for the position of Court Assistant *** solely because I disclosed to them a prior criminal conviction. The agency effectively ‘used the 3 in 1 rule' of State Civil Service rules to repeatedly skip over me. *** the agencies [sic] actions were conspiratorial and clearly intended to evade legislative intent in my opinion. No honest consideration was even remotely given for the job position and I suffered a grievous emotional and psychological trauma from the discrimination as well as a loss in time and money going on bogus interviews."
Claimant alleges unspecified damages in the amount of 2 million dollars.

On February 26, 2002, the claim was filed with the Court. On February 28, 2002, a copy of the claim was served upon the Attorney General's office by certified mail, without a return receipt request. (Defendant's Ex. A). On March 13, 2002, another copy of the claim was served upon the Attorney General's office served by certified mail; this one, however, had a return receipt request (Defendant's Ex. B).

By answer dated April 9, 2002, defendant raised the following affirmative defenses (Defendant's Ex. D). The first affirmative defense is that the Court lacks jurisdiction on the ground that the claim does not comply with Court of Claims Act § 11, which requires an adequate description of the nature of the claim, the items of damage and the injuries sustained. The second affirmative defense is that the Court lacks jurisdiction based upon claimant's failure to comply with Court of Claims Act §§ 10 and 11, which requires that the claim be served upon the Attorney General either personally or by certified mail, return receipt requested, within 90 days of accrual of the claim; here the claim allegedly accrued on November 28, 2001 and service upon the Attorney General was made on February 28, 2002, without a return receipt. The third affirmative defense is failure to state a cause of action. The fourth affirmative defense is that the Court does not have jurisdiction to hear claims against the named defendant, the Office of Court Administration. The fifth affirmative defense is that the Court lacks subject matter jurisdiction over the claim. The sixth affirmative defense is that the complained of conduct is privileged as a discretionary determination. The seventh affirmative defense is that the conduct was in good faith and with legal justification. The eighth affirmative defense is that claimant failed to exhaust his administrative remedies and to file an Article 78 proceeding to properly challenge the determination.
Claimant's Motion to Strike the Affirmative Defenses
Claimant moves to strike all the affirmative defenses. His motion has no basis in law and is purely argumentative. The affirmative defenses were properly raised by defendant in its answer and do not warrant dismissal because they have an appearance of merit.

Accordingly, claimant's motion is DENIED.
Defendant's Cross-Motion to Dismiss
Defendant properly raised with sufficient particularity the affirmative defense of lack of jurisdiction based upon improper and untimely service (Court of Claims Act, § 11 [c]). The requirements of Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance (see Finnerty v New York State Thru. Auth., 75 NY2d 721; Phillips v State of New York, 237 AD2d 590). Claimant's service of the claim upon the Attorney General's office by certified mail was neither timely, i.e., within 90 days of accrual (Martinez v State of New York, 282 AD2d 580), nor proper, i.e., by certified mail, return receipt requested (see Gatz v State of New York, 283 AD2d 607). The March 13, 2002 service by certified mail, return receipt requested was also untimely. Accordingly, the claim warrants dismissal for lack of jurisdiction.

Additionally, the claim warrants dismissal because the agency's determination must first be challenged administratively and then by way of an article 78 proceeding in Supreme Court (Correction Law §755; Matter of New York City Tr. Auth. v State Human Rights Appeal Bd., 97 AD2d 825 ["An article 78 proceeding is the exclusive remedy available to a petitioner charging a public agency with an unfair discriminatory practice based upon his prior criminal convictions"]).

Defendant's cross-motion to dismiss Claim No. 105659 is GRANTED.

August 2, 2002
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims