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
appears to present a cause of action
sounding in discriminatory discharge
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
, 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.