New York State Court of Claims

New York State Court of Claims

KILCULLEN v. THE STATE OF NEW YORK, #2003-032-115, Claim No. 107234, Motion No. M-67337


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:
Joseph Hein, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney GeneralBy: Michael W. Friedman, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 18, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In this claim, Joseph C. Kilcullen states that he was hired as a Highway Maintenance Trainee 2 by the Department of Transportation in September 1995. He alleges that on February 28, 1996, despite the fact that his work had been rated satisfactory, he was fired by the general foreman who stated, among other things, that claimant had weak analytical and problem solving abilities and had a learning disability. Terminating his position for this reason, claimant contends, violated both the Federal Americans with Disabilities Act (42 USC §1201 et seq.) and New York State Human Rights Law §290 et seq. It is alleged that the cause of action arose on February 29, 1996 and/or March 6, 1996.[1] Claimant alleges that the claim, which was filed on January 23, 2003 and served on January 27, 2003 (Friedman affirmation, ¶5), "is filed and served within 90 days of accrual as the statute of limitations was tolled during the pendency of claimant's federal action from 1996 to 2003" (claim, ¶5).

In its answer, defendant State of New York alleged, with sufficient particularity to satisfy Court of Claims Act §11(c), that the claim was untimely, and defendant now moves for dismissal of the claim on that ground. Defense counsel merely cites to the delay of more than seven years between the last possible date of accrual (March 6, 1996) and filing and service of the claim in January 2003.

In opposition to the motion, claimant's counsel recites the steps taken by claimant in pursuing an action in the United States District Court for the Northern District of New York, an action that finally terminated on January 15, 2003 when the Second Circuit denied the appeal of a lower court decision dismissing the action. The claim in this action was filed and served that same month, and claimant asserts that it is timely pursuant to CPLR 205(a). This statute provides that "if an action is timely commenced" and thereafter terminated in some fashion other than a final judgment on the merits (or for other reasons not relevant here),[2] the plaintiff has six months in which to commence a new action based on the same transaction and occurrence.

CPLR 205 is part of Article 2 of the Civil Practice Law and Rules, the article setting and governing limitations of time (i.e. statutes of limitation). A statute of limitations suspends the remedy provided by a right of action, keeping that remedy available until the expiration of a certain time period. Where, however, a statutory time restriction serves as a condition precedent to the existence of a right of action, CPLR 205(a) does not apply (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378 [1999]). The time limitations contained in section 10 of the Court of Claims Act are an "integral part" of the State's waiver of sovereign immunity, and thus a claimant's ability to bring suit against the State is conditioned on his or her compliance with those time limitations (Alston v State of New York, 97 NY2d 159, 163 [2001]; see also, 75 NY Jur 2d Limitation and Laches §18). Where, as here, the claimant did not comply with the time limitations for commencing an action in the Court of Claims, then no claim was ever properly, or timely, commenced and, by the express wording of the statute, CPLR 205(a) cannot apply (accord, Johnson v State of New York, #2001-007-130, Claim No. None, Motion No. M-63583, Sept. 4, 2001, Bell, J.; Jones v State of New York, #2002-018-172, Claim No. 105792, Motion Nos. M-65003, CM-65106, Dec. 11, 2002, Fitzpatrick, J.).

Claimant's reliance on Ahern v State of New York (244 AD2d 7 [3d Dept 1998]) for the proposition that New York courts recognize a type of "equitable tolling" which permits claims dismissed in one forum to be refiled in a court of competent jurisdiction is both mistaken and misplaced. The actual holding of Ahern was that claims against the State based on the Federal Labor Standards Act (FLSA) were governed by the Federal statute of limitations rather than the time limitation period specified in the Court of Claims Act. More significantly, it has been recognized on a number of occasions that the holding in Ahern was effectively overruled by the United States Supreme Court's decision in Alden v Maine (527 US 706 [1999]), where it was held that a State's waiver of its sovereign immunity (both whether such immunity was waived and any conditions placed on such waiver) cannot be overridden by Congress (see, Alston v State of New York, 97 NY2d 159 [2001], affg 281 AD2d 741 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731 [3d Dept 2001]; Speers v State of New York, 183 Misc 2d 907 [Ct Cl 2000]).

For these reasons, defendant's motion is granted and Claim No. 107234 is dismissed.

December 18, 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 Michael W. Friedman, with annexed Exhibits

2. Affirmation in Opposition of Joseph Hein, Esq., with annexed Exhibits

Filed papers: Claim; Answer

[1] The significance of this later date is not stated.
[2] Those other reasons are a voluntary discontinuance, failure to obtain personal jurisdiction over the defendant, and dismissal for failure to prosecute. The statute also applies if a plaintiff dies but his or her cause of action survives.