New York State Court of Claims

New York State Court of Claims

WALSH v. THE STATE OF NEW YORK, #2003-032-072, Claim No. 107384, Motion No. M-66780


Defendant's motion to dismiss both causes of action is granted, one on the ground that it is untimely and one on the grounds that claimant failed to include an essential step in asserting a claim for breach of employment agreement and because it appears that there was no injury.

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:
Thomasine J. Walsh, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kevan J. Acton, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
July 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The claim in this action alleges two quite different causes of action. The first arose on February 28, 2002, at the CSEA office in Building 12 of the Harriman State Office Campus. It is alleged that two State employees allegedly "repeatedly charged" at the door of the office, although they knew that claimant was directly behind the door. They "intentionally and violently forced open the office door," and in doing so struck claimant's head, causing injuries to her neck, head and shoulders. The second cause of action arose on April 11, 2002, when it is alleged, claimant was served with an official Notice of Discipline based on an erroneous determination that claimant had lied to a Department of Labor employee.

A notice of intention to file a claim was served on the Office of the Attorney General on May 28, 2002. The claim was subsequently filed on February 26, 2003 but, according to defense counsel, it was not served on the Attorney General until March 6, 2003. In its answer, defendant raised, among others, the affirmative defense of Statute of Limitations. Defense counsel now has moved to dismiss the first cause of action on the ground that it is barred by the Statute of Limitations. Pursuant to CPLR 215(3), actions to recover damages for assault, battery, and a number of other intentional torts must be commenced within one year.[1] As noted above, the alleged assault and battery took place on February 28, 2002 and the claim was not served until March 6, 2003, more than one year later. Both filing and service of a claim are necessary before an action is actually commenced in this Court (Court of Claims Act §11[a]). Consequently, the first cause of action is untimely.

Defendant moves to dismiss the second cause of action on the grounds that it fails to state a cause of action for which relief can be granted by this Court and that the cause of action lacks the requisite element of damages. According to defense counsel, the employee discipline process is established by the relevant collective bargaining agreement and is a matter of contractual right/obligation, not a constitutional right as alleged by claimant. However, the fact that the pro se claimant alleged a constitutional violation rather than a contract violation does not control, as courts are required to look to the essence of the cause of action that has been pled, not to the name that has been attached to it (Kaufman v Cohen, __ AD2d __, 760 NYS2d 157 [1st Dept 2003]; Brick v Cohn-Hall-Marx Co., 276 NY 259, 264 [1937]).

This Court has jurisdiction to hear claims brought by State employees based on allegations that their employer, the State of New York, has breached the provisions of a collective bargaining agreement (Ahrens v State of New York, 143 Misc 2d 310 [Ct Cl 1989; Shah v State of New York, 140 Misc 2d 16 [Ct Cl 1988]). However, in order to adequately plead or to succeed in proving such a claim, it must be alleged and later established as a threshold requirement, that the employee's union breached its duty of fair representation toward him or her. In the instant claim, clamant has alleged no such breach and there are no factual allegations from which such a breach could be inferred.

In addition, defense counsel also asserts that, according to the Office of the Counsel of the New York State Department of Labor, no penalty was ever imposed on the claimant in connection with this Notice of Discipline. Although this fact is alleged only on information and belief, claimant has not disputed the accuracy of that statement or opposed the motion in any fashion. There can be no liability without an injury. Indeed, for purposes of Court of Claims Act §10, a claim does not accrue until it is possible to determine when a claimant's damages become "reasonably ascertainable" (Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997], lv denied 91 NY2d 814; see, Conner v State of New York, 268 AD2d 706 [3d Dept 2000]). Therefore, unless and until claimant suffers injury, she has no claim.

Defendant's motion is granted with respect to both causes of action and Claim No. 107384 is dismissed.

July 29, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Kevan J. Acton, Esq., AAG

2. Affidavit in Opposition: none received

Filed papers: Claim; Answer

[1] Pursuant to Court of Claims Act §10(3-b) a claim to recover damages caused by the intentional tort of State officers or employees must be filed and served within 90 days of accrual or, if a notice of intention is served within that 90 day period, the claim must be filed and served within one year. Defendant, however, failed to assert an affirmative defense based on failure to comply with this time limitations of the Court of Claims Act and thus by operation of section 11(c), that defense has been waived.