2) Affirmation in Opposition of Christopher D. Watkins filed September 30,
2002 (Watkins Opposition) with annexed Exhibits 1-10 and Claimant's
Memorandum of Law.
FILED PAPERS: Decision and Order, Sise, J. Claim No. N/A, Motion No. M-62023,
dated September 27, 2000. Verified Claim, Answer, Bill of Particulars, Amended
Bill of Particulars.
The Court previously granted Claimant permission to late file a claim. The
gravamen of the Claim is that the New York State Department of Labor was
negligent when it failed to properly screen and investigate the background of
one Tina Raymond before she was referred to Claimant. Claimant hired Raymond as
a bookkeeper, who subsequently embezzled money from Claimant.
The following recitation of facts is based upon the Court's review of the
papers submitted in connection with the instant motion. In 1998, when Claimant
was deciding whether to move his company from New Jersey to New York, he had
been promised a number of inducements, such as tax credit and grant/loan
combinations, by the "Orange County Partnership." One of the inducements was
described as follows: "Department of Labor Assistance Employee recruitment,
screening and interviewing. It is free of charge." In addition, in March 1999,
representatives of the Department of Labor who attended a meeting organized by
the Orange County Partnership told Claimant that he could fax job openings
directly to the Orange County Partnership and interested employees would be
screened and referred to Claimant. The Department of Labor does not perform
criminal background checks or perform inquiries into a job candidate's resume.
Rather, the DOL verifies the job candidate's credentials with the job candidate.
Pursuant to this process, the resume of Tina Raymond was forwarded to Claimant
for consideration as a bookkeeper. Claimant, believing Raymond was screened,
interviewed her but did not perform any independent investigation into her
background or credentials. She was subsequently offered, and accepted, the
position of bookkeeper. Shortly thereafter, Claimant determined that Raymond
was possibly embezzling company funds and confronted her with this allegation.
Raymond acknowledged her wrongdoing to Claimant and then fled. In the course of
ascertaining the extent of Raymond's actions, Claimant learned that a prior
employer suspected Raymond of embezzling while in that employ and that Raymond
was on probation for having embezzled from yet another employer.
Summary judgment is the procedural equivalent of a trial (Andre v
Pomeroy, 35 NY2d 361). In order to grant summary judgment, a Court must
find that there are no material triable issues of fact. "To obtain summary
judgment it is necessary that the movant establish his cause of action or
defense 'sufficiently to warrant the court as a matter of law in directing
judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of
evidentiary proof in admissible form" (Friends of Animals v Associated Fur
Mfrs., 46 NY2d 1065, 1067). The role of the Court, therefore, on a motion
for summary judgment is not to resolve material issues of fact, but instead is
to determine whether any such issues exist (Sillman v Twentieth Century-Fox
Film Corp., 3 NY2d 395).
Once the movant establishes his or her prima facie entitlement to summary
judgment, the burden shifts to the opposing party to come forward with
admissible proof establishing the existence of a material issue of fact
requiring a trial (Leek v McGlone, 162 AD2d 504). Only the existence of
a material issue of fact, however, and not one based on conclusory or irrelevant
allegations, will be sufficient to defeat a motion for summary judgment
(Rotuba Extruders v Ceppos, 46 NY2d 223). Should the moving party fail
to make a prima facie showing of its entitlement to judgment as a matter of law,
the motion will be denied regardless of the sufficiency of the opposing papers
(Alvarez v Prospect Hosp., 68 NY2d 320).
The Defendant has moved for summary judgment asserting that Claimant is wrong
on both the facts and law in that Claimant was never advised the State would
conduct a criminal history check of job candidates (Lee Affirmation,
¶ 3), nor was it legally permissible for the State in these circumstances
to conduct a criminal history check of Raymond or any other job candidate
(Lee Affirmation, ¶ 4). In support of this position, Defendant
relies, inter alia, upon the affirmation of Kenneth Connolly, Esq.,
Deputy Commissioner and General Counsel to the Division of Criminal Justice
Services, which recites the instances in which a criminal background check can
be obtained, none of which pertain to the instant facts.
Claimant opposes the motion by asserting that Defendant's DOL represented that
it would provide "employee recruitment, screening and interviewing" and that
such representation included services beyond a criminal background check
(see, Claimant's Memorandum of Law, p. 7). Claimant further posits that
by undertaking to recruit, screen and interview job candidates, the Defendant
voluntarily assumed a duty to Claimant which, by failing to make any inquiry,
inter alia, into the employment history of the job candidate, was
breached ( Id. At 6).
On this motion, the Court finds itself in only a slightly better position than
when it decided the motion for permission to late file a claim and expressed its
doubt as to the viability of this Claim (Decision and Order, Sise, J. Claim No.
N/A, Motion No. M-62023, dated September 27, 2000). Notwithstanding these
shortcomings, in the Court's view, Defendant has established that it neither
represented that it would nor could it legally perform a criminal history
background check on Raymond. However, the Defendant has honed its focus too
sharply and has ignored, on this motion, the other ways in which Claimant
alleges the State was negligent; namely failing to inquire into Raymond's prior
employment and actual employment credentials. Accordingly, by virtue of the
deficiencies in Defendant's moving papers, and as highlighted by Claimant's
opposition papers, there remains a question of fact as to what services, if any,
beyond qualification matching, the DOL voluntarily assumed to perform for
Claimant (see, Webster Soda Fountain Manufacturers Corp v W & P
Associates, SDNY, 1988 U.S. Dist. LEXIS 6959).
Based upon the foregoing, Defendant's summary judgment motion is granted in
part and denied in part.
The parties shall appear for a pre-trial conference on January 22, 2003 at
11:00 a.m. in Chambers, 8th floor, Justice Building, Empire State Plaza,