New York State Court of Claims

New York State Court of Claims

SPEERS v. THE STATE OF NEW YORK, #2003-015-325, Claim No. 97790, Motion No. M-66701


Longstanding FLSA claim dismissed for lack of jurisdiction based upon insufficient verification and lack of specificity of claim based on Appellate Division, Third Department's decision in Lepkowski v State of New York, 302 AD2d 765.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Chamberlain, D'Amanda, Oppenheimer & Greenfield
Matthew J. Fusco, EsquireMichael A. Sciortino, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 13, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion to dismiss the claim herein for lack of jurisdiction is granted. Claimants' request for leave to submit an amended verified claim contained within a memorandum of law made without a notice of cross-motion (see CPLR 2215) is without legal effect and is therefore denied. Claimants are employed or were previously employed by the State as Senior Examiners in the Department of Audit and Control. Claimants maintained offices in their respective homes and traveled from their homes to various municipalities where they performed their audit duties. The State reimbursed claimants for expenses incurred in traveling from their homes to work locations but refused to credit the time for purposes of overtime compensation. As a consequence, claimants filed this claim against the State on February 10, 1998 seeking compensation for the time spent traveling from their homes to their various work sites pursuant to the Fair Labor Standards Act (see, 29 USC § 201 et seq.) (hereinafter FLSA).

Defendant has moved to dismiss the claim on the grounds that the Court lacks jurisdiction in that the claim is not properly verified and lacks the specificity required by Court of Claims Act § 11 (b) as interpreted in the February 20, 2003 decision of the Appellate Division, Third Department in Lepkowski v State of New York, 302 AD2d 765.

Claimants have not formally opposed the motion by answering affidavit (CPLR 2214[b]) or attorney's affirmation (CPLR 2106). Instead claimants' attorneys submitted a signed memorandum of law in opposition to the motion.

Motion practice in civil actions is governed by CPLR 2211 et seq. Rule 2214 (b) provides for timely service of answering affidavits in response to a motion. It does not specifically allow the submission of a signed memorandum of law such as that submitted by claimants on this motion as an alternative to an answering affidavit. Despite this fact defense counsel neither rejected the submission nor replied to challenge its legal sufficiency.

Since the issue raised in the motion is a legal one not dependent upon disputed allegations of fact the Court is inclined to overlook this procedural irregularity and to address the merits of the motion (CPLR § 2001; Sylvander, Matter of v Stewart, 36 AD2d 567; Coonradt v Walco, 55 Misc 2d 557).

In Lepkowski, the majority found that the failure to specifically set forth the facts underlying the claimants' FLSA claim and the damages sought therein mandated dismissal inasmuch as the pleading requirements contained in Court of Claims Act § 11 (b) are jurisdictional in nature and must be strictly construed. The Court stated the following at page 766:
Such claims should, at the very least, identify the place of claimants' employment within the state, the office where the overtime allegedly occurred, the weeks in which said overtime accrued and the number of hours worked in excess of 40 hours.

Although claimants urge that the foregoing omissions are not significant inasmuch as the information required is a matter of public record easily discoverable by defendant, we disagree. It is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11 (see, Cobin v State of New York, 234 AD2d 498, 499 lv dismissed, 90 NY2d 925).
The factual allegations in the instant claim assert that claimants' homes have been designated as their official station(s) and that their duties involve traveling from their homes to various unidentified municipalities and other public entities within an eight county area in Western New York. Although the claimants are paid mileage between their homes and the audit sites the defendant has refused to compensate them for the time spent traveling to and from their assigned audit locations.

In stating the elements of the FLSA cause of action the claim asserts, inter alia, the following:
44. Defendants have violated Section 7 of the Act, 29 USC § 207 by refusing to compensate claimants for overtime when they worked more than forty (40) hours within a week.

45. Certain employment and work records for each claimant are in the exclusive possession, custody, and control of the defendant, and the claimants are unable to state at this time the exact amount owing to each of them. Defendant is under a duty, imposed by the Fair Labor Standards Act, 29 USC § 211 (c) and the Regulations of the United Stated [sic] Department of Labor, to maintain and preserve payroll and other employment records with respect to claimants from which the amounts of defendants liability can be ascertained.

46. As [a] result of said violations of Sections 6 and 7 of the Fair Labor Standards Act by the defendant, there is now a sum due and owing from the defendant in an amount that is not yet determined by the claimants and when such sum is ascertained, claimants will ask leave of the Court to amend the complaint to insert the same.
It is obvious that the above allegations are inadequate to meet the pleading requirements of Court of Claims Act § 11 (b) as interpreted by the Appellate Division majority in Lepkowski in that the claim clearly fails to specify the times when and the place where the claims arose, the items of damage and total sum claimed.

The claim does not set forth the particular dates when overtime accrued or the number of hours worked in excess of 40 hours per week but rather asserts in general terms that the claimants are overtime eligible and worked more than 40 hours in work weeks since June 1992 for which they have not received overtime compensation. Similar allegations were determined to be deficient for purposes of meeting the requirements of Court of Claims Act § 11 (b) in Lepkowski.

As to damages, the claim does not set forth the total sum claimed. Further, the Court in Lepkowski rejected the argument that the particular items of damage sustained were easily discoverable from public records maintained by the defendant.

Accordingly, for the reasons stated above the defendant's motion must be granted and the claim is dismissed.

Claimants' request for leave to amend their claim to provide additional specificity and to state a sum certain has not been considered by the Court. The request was asserted in a memorandum of law which was not accompanied by the required notice of cross-motion and was not addressed by the defendant (CPLR 2215; see, Guggenheim v Guggenheim, 109 AD2d 1012; Briger, Matter of, 95 AD2d 887; Myung Chun v North Am. Mtge. Co., 285 AD2d 42; cf., Fox Wander W. Neighborhood Assn. v Luther Forest Community Assn., 178 AD2d 871). More importantly, even if such a cross-motion had been properly made, it is well established that a claim which is jurisdictionally defective cannot be cured by amendment (see, Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983; Martin v State of New York, 185 Misc 2d 799; Ferrer v State of New York, 172 Misc 2d 1). Claimants' request for leave to amend the claim is therefore denied.

June 13, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 14, 2003;
  2. Affirmation of Kevan J. Acton dated April 14, 2003;
  3. Claimants' opposition to defendant's motion to dismiss dated May 16, 2003.