New York State Court of Claims

New York State Court of Claims

CARBONE v. THE STATE OF NEW YORK, #2002-015-217, Claim No. 097853, Motion Nos. M-64143, CM-64239


Synopsis


Claim alleging Fair Labor Standards Act violation not eligible for relation back provision of CPLR 205(a) since right to such relief specifically conditioned on compliance with statutory time requirement of Court of Claims Act § 10 (4). All alleged violations occurred more than six months prior to filing of claim.

Case Information

UID:
2002-015-217
Claimant(s):
FRANK D. CARBONE, JAMES E. HASSAN, JOHN W. BURKE, EDWARD KUSTYN, THOMAS GADOMSKI, JAMES H. HAYS, ROBERT I. BERGER and JOSEPH L. CONRAD The caption of this claim was amended sua sponte by order of this Court dated July 31, 2000 to reflect the only properly named defendant.
Claimant short name:
CARBONE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim was amended sua sponte by order of this Court dated July 31, 2000 to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
097853
Motion number(s):
M-64143
Cross-motion number(s):
CM-64239
Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Bloomberg and Magguilli, EsquiresBy: Michael C. Magguilli, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 17, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion for summary judgment pursuant to CPLR 3212 on the ground that the claim is time barred is granted. The claimant's cross-motion for an order permitting the filing of this claim nunc pro tunc pursuant to CPLR 205 (a) to relate back to the filing of an action in Federal District Court on September 19, 1995 or for late claim relief is denied. The claim herein was filed on February 23, 1998 on behalf of current or former employees of the Department of Environmental Conservation Division of Law Enforcement and New York State Park Police seeking to recover unpaid overtime compensation allegedly due pursuant to the federal Fair Labor Standards Act of 1938 (FLSA), 29 USC § 201, et seq.

In a prior motion decision dated September 14, 2001 (filed September 21, 2001) this Court found that "the claims of the named claimants accruing prior to August 23, 1997 (i.e., six months prior to the February 23, 1998 filing) are barred as untimely while claims accruing on and after such date are timely."

On the instant motion defense counsel asserts that she has conducted a search of the claimants' relevant time records and determined therefrom that all of the claimants' causes of action accrued prior to August 23, 1997.

Claimants have opposed the motion and cross-moved for an order determining that the claim filed in this Court and served upon the Attorney General on February 23, 1998 was properly and timely recommenced within six months of the dismissal of the claimants' FLSA action in Federal District Court pursuant to the recommencement provisions of CPLR § 205 (a). Alternatively, the claimants seek permission to file a late claim as provided in Court of Claims Act § 10 (6).

At paragraph (4) of his affirmation in opposition to the motion and in support of the cross-motion claimants' attorney states that "[c]laimants cannot dispute that all of the claimants' causes of action accrued more than six months before February 23, 1998." Claimants argue, however, that their claim is timely because it was properly recommenced pursuant to CPLR § 205 (a) within six months of the Federal District Court's January 16, 1998 dismissal for lack of subject matter jurisdiction.

In Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, the Court of Appeals held:
Case law distinguishes between a Statute of Limitations and a statutory time restriction on commencement of suit. The former merely suspends the remedy provided by a right of action but the latter conditions the existence of a right of action, thereby creating a substantive limitation on the right (see, Tanges v Heidelberg N. Am., 93 NY2d 48, 55; Romano v Romano, 19 NY2d 444, 447). Both CPLR 205 (a) and its equivalent predecessor statutes have been held to be inapplicable when the statutory time bar to the commencement of the second action falls into the latter category, as a condition precedent (Glamm v City of Amsterdam, 67 AD2d 1056, 1057, affd for reasons stated below 49 NY2d 714 ['CPLR 205 does not apply to conditions precedent']; Hill v Board of Supervisors, 119 NY 344, 347 [Code of Civil Procedure § 405 not applicable where new action did not comply with a 'condition precedent']; see also, Bernardez v Federal Deposit Ins. Corp., 104 AD2d 309, 310, affd for reasons stated below 64 NY2d 943; Carr v Yokohama Specie Bank, 272 App Div 64, affd 297 NY 674).
***
The legislative intent to condition the waiver of sovereign immunity with respect to the Port Authority on timely suit could not be more clear. Unconsolidated Laws § 7107 unambiguously allows an action against the Port Authority only 'upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year' (McKinney's Uncons Laws of NY § 7107 [emphasis supplied]). Thus, CPLR 205 (a) is inapplicable because, here, the 'right to seek relief is specifically conditioned upon compliance with a particular time requirement rather than, or in addition to, a Statute of Limitations" (Matter of Morris Investors v Commissioner of Fin. of City of N.Y., 69 NY2d 933, 936).
In Alston v State of New York, ____ NY2d ____, the Court of Appeals examined the nature of the restrictions to suit contained in Court of Claims Act § 10 and found the following:
Article 2, section 10 of the Court of Claims Act could not be any clearer in conditioning the waiver of sovereign immunity on compliance with the time limitations for filing claims it sets forth. It states that '[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied' with the time limitations established in that section (emphasis supplied). This is fully consistent with the legislative history of the statute (see, Stmnt in Support, Bill Jacket, L 1939, ch 860, at 27 ['(t)he waiver of immunity * * * is conditioned * * * upon the claimant's complying with the limitations contained in Article II, which confers jurisdiction upon the Court']; see also, Davison, Claims Against the State of New York, § 19.01, at 152 ['Waiver of the State's Immunity is Conditional.']).

In Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp. (93 NY2d 375), we explicitly recognized that a waiver of sovereign immunity can be conditioned upon compliance with a particular time requirement. In that case, the State not only consented to suits against the Port Authority of New York and New Jersey but 'also expressly incorporated within the [same] act a requirement of timely suit as an integral part of its waiver of sovereign immunity' (id., at 379 [citations omitted]). We determined that the 'legislative intent to condition the waiver of sovereign immunity with respect to the Port Authority on timely suit could not be more clear' because the statute allowed an action against the Port Authority only 'upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year' (id. [quoting, McKinney's Uncons Laws of NY § 7107]). The language and legislative history of Court of Claims Act § 8 similarly compel the conclusion that the Legislature incorporated as an integral part of its waiver of immunity the requirement that claims be filed within the time limits imposed under Court of Claims Act § 10 (4).
From the above quoted language it is clear that the provisions governing the time for service and filing of a claim contained in section 10 of the Court of Claims Act are more than Statutes of Limitations. They are, in fact, conditions precedent to suit which constitute an integral part of the State's waiver of the immunity accorded a sovereign at common law. As such, "CPLR 205 (a) is inapplicable because, here, the 'right to seek relief is specifically conditioned upon compliance with a particular time requirement rather than, or in addition to, a Statute of Limitations' (Matter of Morris Investors v Commissioner of Fin. of City of N.Y., 69 NY2d 933, 936" (Yonkers Contr. Co. v Port Auth. Trans- Hudson Corp., supra at 379). Accordingly, that portion of the cross-motion seeking a determination that the claim is timely pursuant to the recommencement provisions of CPLR § 205 (a) is denied.

Claimants' cross-motion for late claim relief was filed with the Court on October 30, 2001 and for the reason set forth below must be denied. In Bergmann v State of New York, 281 AD2d 731 the Appellate Division, Third Department, addressed the issue of late claim relief as applied to an FLSA claim and concluded as follows (at 733-734):
Such applications are governed by Court of Claims Act § 10 (6), which permits the filing of a late claim 'at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of [CPLR article 2]' – here, the two or three-year Statute of Limitations set forth in the FLSA. The failure to file such application within the proscribed time period 'creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief' (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607 [emphasis omitted]).

Claimant acknowledges in his brief that all of his damages accrued prior to September 30, 1996. As his application for permission to file a late claim was not filed until September 30, 1999 – more than three years after his claim accrued – such application was properly denied.
Here claimants' attorney concedes at paragraph "4" of his affirmation in support of the cross-motion "that all of Claimants' causes of action for unpaid overtime compensation accrued more than six months before February 23, 1998" (i.e., prior to August 23, 1997). Under the above quoted holding in Bergmann (supra) the instant application for late claim relief filed on October 30, 2001 was made well beyond the maximum three year period provided for commencement of an action allowed under the FLSA when measured from August 23, 1997 or any earlier date. Accordingly, late claim relief pursuant to Court of Claims Act § 10 (6) is not available to claimants and must be denied. It is not necessary to address the other statutory factors pertinent to an application for late claim relief under Court of Claims Act § 10(6) when the proposed claim is time barred (see Johnson v State of New York, Ct Cl, September 4, 2001 [Claim No. None, M-63583] Bell, J., unreported).

Dismissal of the claim obviates the need to reschedule a date for the filing of claimants' note of issue which was requested in the letter of claimants' attorney dated December 27, 2001.


January 17, 2002
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of motion dated October 5, 2001;
  2. Affirmation of Kathleen M. Resnick dated October 5, 2001 with exhibit;
  3. Notice of cross-motion dated October 29, 2001;
  4. Affirmation of Michael C. Magguilli dated October 29, 2001, with exhibits;
  5. Affirmation of Kathleen M. Resnick dated November 5, 2001.