New York State Court of Claims

New York State Court of Claims

BRYANT v. THE STATE OF NEW YORK, #2004-028-0002, Claim No. 103376


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:
Defendant's attorney:
BY: Dewey LeeAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 25, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

The gravamen of the instant Claim is that the New York State Department of Labor (DOL) was negligent when it failed to properly screen and investigate the background of one, Tina Raymond (Raymond) before she was referred to Claimant. Claimant alleges that he relied upon representations of the DOL that it would screen, recruit and interview candidates for his firm and that such services were offered as an enticement or incentive to him to relocate his company to New York State. Claimant hired Raymond as a bookkeeper and in that capacity she subsequently embezzled money from Claimant. Defendant's summary judgment motion was granted in part and denied in part. Defendant established that it neither represented that it would nor could it legally perform a criminal history background check on Raymond. However, there remained a question of fact as to what services, if any, beyond qualification matching, the DOL voluntarily assumed to perform for Claimant (
Bryant v State of New York, Ct Cl, Sise, J., Claim No. 103376, UID #2002-028-073, December 23, 2002). The Court ordered a bifurcated trial and this decision addresses only the issue of liability.
William Bryant (Bryant), after obtaining an associates degree in HVAC and following a stint in the Merchant Marine, started Mechanical Resources Incorporated (MRI) in 1975 out of his residence. Over the years the business grew and re-invented itself. Eventually, the business, which was operating out of Jersey City, New Jersey, required more space. In its search, MRI contacted the Orange County [New York] Partnership (OCP) after seeing an advertisement in a trade publication. In August 1998 MRI received informational materials through the mail from OCP. Bryant testified that in September 1998 he met with representatives of the OCP, the New York State Department of Labor, a state economic development representative and two real estate agents. Bryant testified that Calvin Weir (Weir), the DOL representative, said DOL could find qualified employees for the manufacturing operations and recruit, screen and interview all potential employees. Weir's representations encouraged Bryant to continue to pursue relocation of MRI to Orange County[1]
. A second meeting, called a "labor resource" meeting, was held at the OCP in March, 1999 which was attended by, among others, Calvin Weir and other DOL representatives. Bryant testified that Weir, in the "labor resource" meeting, again represented that New York State had a pool of employees from which qualified people could be drawn for welders, electricians, pipefitters and other positions and that the DOL would give assistance in employee recruitment, screening and interviewing. These services were to be free of charge to MRI. Bryant testified that he expected only two workers would be transferring to Orange County and that MRI would be looking for a bookkeeper because the current bookkeeper was not relocating to Orange County.
MRI received Raymond's resume
along with three or four other resumes
and Bryant was personally involved in the hiring process. Bryant testified he interviewed two candidates - Raymond and a Ms. Bloom - for the bookkeeper position. In the interview, Bryant focused on the candidates familiarity with the accounting software used by MRI. He did not contact past employers for either woman "because DOL was interviewing and screening these people prior." Bryant acknowledged that when he hired employees at his New Jersey location there was no DOL assistance. His company therefore checked out prior employment. After a second interview, in May 1999, Bryant hired Raymond. At that time, MRI was still operating from New Jersey and Raymond commuted to New Jersey for training until mid-June 1999 when the office was relocated to Orange County.
In early December, 1999 Bryant became aware there was a problem with Raymond

when he learned she had obtained a cell phone in her own name that was being billed to the company account. Bryant investigated further when Raymond couldn't produce MRI's bank statements and discovered a copy of a forged check bearing his signature made payable to Raymond. When Bryant confronted Raymond in January 2000, she admitted she had been stealing from MRI.

On cross-examination, Bryant testified that he assumed the DOL was going to screen the candidates and he assumed screening meant the DOL would check references. Bryant confirmed these responses upon questioning by the Court. Bryant also testified that he had Raymond complete the employment application MRI had used in New Jersey but did not check any of the personal references she listed on that application.

Claimant's next witness, Anthony Zippo (Zippo), at all times relevant, was
employed by DOL as a local veterans' employment representative working out of the Orange County Career Center. Zippo testified that the pool of candidates utilized by DOL was comprised mostly of people receiving unemployment and some individuals who were on early release [from jail] programs. Zippo testified that when he interviewed candidates it was his understanding that he could not check employment history but rather had to accept what was on the individual's resume! as an accurate reflection of their employment history and that any explanations offered by the interviewee were accepted "at face value".
On cross-examination Zippo testified that on one occasion he met with Bryant at MRI to get the job orders. Zippo stated that he never told Bryant that he would look at prior references of potential employees. Zippo explained that the DOL screened for job skills and experience - "we would match job orders to skills" and when there was a match we would fax a resume

Jovanna Branham (Branham) who, prior to her retirement, worked as an Employment Services Representative for DOL at the Orange County Career Center, also was called to testify by the Claimant. Branham testified one of her duties was to screen employees. Although she did not recall meeting with Raymond, Branham testified that upon reviewing certain DOL records (Exhibit 12) the presence of her interviewer code on the records confirmed that she met with Raymond on April 26, 1999. Branham testified that the information contained on Exhibit 12, which detailed contact with prospective employees, comes initially from a "65 form" completed by the job seeker and is then updated by the interviewer. Branham testified that she understood the screening performed by DOL meant looking for skills and that she followed the same procedures regardless of the job being sought. When she interviewed Raymond she did not contact her previous employers and explained that she takes the interviewee's "word for it" on responses to questions, such as the reason for leaving a job.[2]
Weir, a 20 year employee of the DOL and manager of the Orange County
office from 1997-2002, was called by Claimant. Weir explained that the DOL worked from the Orange County Career Center offices, which received its funding from the United States Department of Labor through the New York State DOL, as a matter of convenience. The Career Center provided the job training component while the DOL provided the employment component.
Weir testified that he was at the labor resource meeting with Bryant and confirmed that he

informed Bryant that MRI could receive recruitment, screening and interviewing services and that such services were free of charge. Weir acknowledged that such services were incentives to MRI and the services were analogous to those of a placement service.
On cross-examination, Weir testified that Bryant never asked and the DOL did not offer to check employment references of job seekers. Weir explained the DOL screens to assess a job seeker's ability to do a job, which he likened to a matching process.

Claimant's final witness, Peter Durkin[3]
(Durkin) is the president of Orange Heating. Durkin testified that he had previously employed Raymond and dismissed her for having taken money from the firm. Durkin further testified that he was never contacted by anyone from DOL or the Orange County Career Center regarding Raymond's suitability for employment as a bookkeeper.
Defendant called no witnesses and made no motion at the conclusion of Claimant's proof.

Notwithstanding the parties stipulated at the close of the trial that at the time of this claim the DOL did not have any written procedures regarding referral screening and interviewing of prospective employees[4], Claimant sought an adverse inference based upon the employee witnesses' testimony that they believed there may have been materials regarding procedures predating the instant claim. The Court reserved at the time of trial. In order to obtain an adverse inference charge (see PJI 1:77) Claimant must make a prima facie showing that the document in question actually exists and that it is under the opposing party's control (see Scaglione v Victory Memorial Hosp., 205 AD2d 520, lv denied 85 NY2d 801; Fares v Fox, 198 AD2d 396). The party requesting the charge must also show that the adverse party has no reasonable explanation for not producing the document. On this record, the Court declines to draw an adverse inference.
Claimant's case is premised upon the allegation that the DOL in screening job seekers would check references and employment history and hence discover undesirable candidates, which it failed to do with Raymond. An entity is, of course, negligent when it fails to use the degree of care that a reasonably prudent person would have under the circumstances obtaining (
see PJI 2:10). In Webster Soda Fountain Mfrs. Corp. v W & P Associates, 1988 WL 75271, a case relied upon by Claimant and factually similar to the case at bar, a cause of action for negligence was permitted to proceed beyond the pleading stage with the Court noting "[I]t could scarcely be said that, as a matter of law, it is unforeseeable that a man convicted several times of grand larceny might exploit a position as a bookkeeper for personal gain" (id.). That case, which provided refuge for Claimant at the summary judgment stage, is of no import following trial as the Court now is in a position to resolve the questions regarding the obligations of the parties to each other.
The Court, having observed the demeanor of the witnesses and having heard their testimony, finds that each witness was credible. On the record before it, the Court finds that at no time did the Defendant misrepresent to Claimant the nature or scope of the services which were to be provided by the DOL in screening, recruiting, referring or interviewing prospective job applicants. The Court further finds Defendant delivered only those services which, as testified to by Calvin Weir, Defendant stated it would provide. Thus, the Defendant assumed no duty to qualify candidates beyond their stated job skills. The record establishes, and the Court so finds, that the Claimant failed to take any steps to inquire into any aspect of the background - whether personal or work related - of the individuals referred to MRI based not on a duty owed by the Defendant, but upon an assumption made by Claimant. Put another way, Claimant opened his arms to embrace the services provided by Defendant but his eyes were closed to the details of the services.

Accordingly, the Court finds Claimant has failed to establish by a preponderance of the credible evidence that the unfortunate injuries sustained at the hand of Raymond were proximately caused by the negligence of the Defendant. Claim No. 103376 shall be and hereby is dismissed.

The Court has reviewed the Claimant's proposed Findings of Fact and Conclusions of Law and has incorporated into this decision those Findings of Fact and Conclusions of Law it deems essential to this decision in compliance with CPLR 4213(b).

All motions not heretofore ruled upon are hereby denied.

Let judgment be entered accordingly.

March 25, 2004
Albany, New York

Judge of the Court of Claims

[1] The testimony was not clear on the dates, however, early in 1999, MRI located a building in Orange County and entered in negotiations to purchase the property. That transaction closed sometime later that year. MRI's office operations transferred in mid-June 1999 to Orange County and production began in September 1999.
[2] Exhibit 12, as explained by Branham, indicated that Raymond quit (code 2) each of the jobs listed.
[3] Due to his unavailability at the time of trial, Durkin's testimony was taken on June 2, 2003 pursuant to Subpoena and the transcript of that examination was received in evidence as Exhibit 24.
[4] Defendant had responded consistent with the stipulation and affirmatively stated that any such materials, if they had existed, were outdated and no longer in use.