New York State Court of Claims

New York State Court of Claims

AMIN v. THE STATE OF NEW YORK, #2002-015-295, Claim No. NONE, Motion No. M-65409


Application for late claim relief brought by woman alleging discriminatory discharge from employment on the basis of religion and national origin in wake of 9/11 attacks is granted.

Case Information

FATIMAH Z. AMIN The caption is hereby amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption is hereby amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Napierski, Vandenburgh & Napierski, LLPBy: John W. Vandenburgh, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 2, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


This motion for late claim relief pursuant to Court of Claims Act § 10 (6) is granted. In the proposed notice of intention to file a claim attached to the motion papers as Exhibit "C" (treated by the Court on this motion as a proposed claim) movant seeks to recover money damages stemming from an alleged discriminatory discharge from employment. Movant alleges that while specially employed by the New York State Department of Health (DOH) through a temporary employment agency (Kelly Services, Inc.) in a data entry/filing position she was subjected to discriminatory remarks by co-workers regarding her national origin (Afghani) and religion (Muslim) following the September 11, 2001 attacks on the World Trade Center. She alleges that supervisory employees of the DOH permitted and encouraged a hostile work environment and allowed, permitted and encouraged the dissemination of insulting, derogatory and offensive cartoons, pictures and other materials attacking people of the Muslim religion, of Middle Eastern descent and of Afghani national origin; depicting such persons in an unflattering and offensive light. She further alleges that DOH supervisors were aware of the situation and failed to address it adequately. She alleges further that unspecified individuals contacted, reported or otherwise suggested to the Federal Bureau of Investigation (FBI) that movant behaved suspiciously and that she might be an appropriate candidate for investigation based upon her religion and national origin. Finally, she alleges State employees discriminated against her on the basis of her religion and/or national origin by terminating or causing her to be terminated from her position of employment. It is asserted that these activities by the State of New York and its Department of Health breached unspecified federal and state laws prohibiting discrimination in employment based upon religion and/or national origin.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

The first issue for determination upon a late claim motion is whether the application is timely. It is settled that a civil action against the State based on an alleged violation of the Human Rights Law is governed by a three year Statute of Limitations (Jones v State of New York, 149 AD2d 470). The motion, therefore, is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuse advanced in the movant's affidavit in support of the motion for her failure to timely pursue the claim is that scheduling difficulties prevented her timely return of a signed notice of intention to her attorneys. This neglect on her part is not a reasonable excuse for failure to timely file a claim (see, E. K., Matter of, v State of New York, 235 AD2d 540; Griffin v John Jay Coll., 266 AD2d 16; Almedia v State of New York, 70 AD2d 712; Nyberg v State of New York, 154 Misc 2d 199) and this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant alleges in her affidavit that "the State received a letter dated October 26, 2002 [sic] well within the 90 days period, outlining my claims." A similar allegation is contained in her attorney's affirmation in support of the motion and a copy of the purported letter dated October 26, 2001 and addressed to the New York State Department of Health is both referenced in the affirmation and attached to the motion papers as Exhibit "A".

In opposition to the motion defense counsel argues that the October 26, 2001 letter was insufficient to provide the State with notice of movant's claim since it provides no specifics concerning the acts and/or omissions which allegedly constituted discrimination based on religion and national origin.

While the subject letter is lacking in explicit detail, it appears to the Court that under the circumstances alleged the letter provided timely notification to the DOH of the movant's primary assertion that the termination of her employment was wrongful and afforded defendant an opportunity to timely investigate the incident within 90 days of its occurrence as to a cause of action for wrongful discharge. As argued by defense counsel, however, the letter did not provide timely notice of movant's intent to pursue a cause of action for hostile work environment. With regard to movant's alleged claim of discriminatory discharge under State law the Court finds that the State has not demonstrated that it was prejudiced by movant's delay and the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion with regard to that cause of action only.

As to the issue of merit, as previously noted, the proposed notice of intention[1] appears to present a cause of action sounding in discriminatory discharge[2]. In order to establish a potentially meritorious claim it is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid claim exists (see, Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In the Court's view movant has met that burden.

As to the final factor, it does not appear that movant has any other remedy available under the circumstances. While initially movant had the option of proceeding with an administrative claim before the New York State Division of Human Rights or of instituting an action in either this Court or in Supreme Court based upon the alleged violation of the New York State Human Rights Law (Executive Law § 296) she appears to have elected her remedy to the mutual exclusion of the other potential remedies (see, Vargas v City University of New York, Ct Cl, April 19, 2000 [Claim No. 100326, Motion Nos. M-60917, CM-61307] Lebous, J., unreported). This factor weighs in favor of granting the motion.

A review of all the statutory factors persuades the Court that late claim relief should be granted. Claimant is directed to file and serve a claim in conformity with Court of Claims Act § 11 (b) within 30 days of the date of filing of this decision and order.

October 2, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 25, 2002;
  2. Affidavit of Fatimah Z. Amin sworn to June 15, 2002;
  3. Affirmation of John W. Vandenburgh dated May 22, 2002 with exhibits;
  4. Affidavit of Michael C. Rizzo sworn to July 29, 2002;
  5. Reply affidavit of John W. Vandenburgh sworn to August 2, 2002.

[1]See, page 1, supra.
[2]New York State Executive Law § 296 provides: 'It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.'