New York State Court of Claims

New York State Court of Claims

SINACORE v. THE STATE OF NEW YORK, #2004-032-050, Claim No. 107738, Motion No. M-67551


All portions of this claim which is based on based on events that took place during the period from 1995 to 2000 are untimely, and in addition each of the three causes of action lacks merit. Defendant's motion to dismiss is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Gerald Sinacore, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 17, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the same facts and events that gave rise to earlier actions commenced in this and other courts, and defendant has moved for an order dismissing the claim by application of the doctrine of res judicata, and alternatively, on the ground that it is untimely.

Claimant's several actions all arise from the circumstances that resulted in the termination of his employment as a correction officer with the Department of Correctional Services (DOCS).[1] Claimant began working for DOCS in 1983. In March 1989, while assigned to Greene Correctional Facility, he bid for and received an assignment to the Albany Medical Center ("AMC"), where guards are needed for inmates who are hospitalized. During his first month on that post, he received a "notice of discipline" for sleeping on duty. The matter was submitted to arbitration and a consent decree was reached, whereby claimant paid a fine and the notice would be returned to him if he had no further notices within the following three years. The notice was returned to him on April 28, 1992.

On March 25, 1993, claimant received a second notice of discipline and was suspended without pay. Shortly thereafter, he was served with a notice of dismissal, referencing his failure to maintain an attitude and posture of alertness at his AMC post. As a result of the grievance instituted on his behalf by his union and the subsequent arbitration, claimant's penalty was modified to one week suspension, transfer back to Greene Correctional Facility, and a bar on his applying for any other jobs at AMC.[2] This was appealed (see section below on "Grievance and Arbitration of Second Notice of Discipline"), and in the meantime claimant returned to work at Greene Correctional Facility.

On January 26, 1995, claimant learned that employees on two other shifts had received checks for wages that had been withheld under the 1991-1995 collective bargaining agreement.[3] He requested his check but was told that the checks had been locked up and were not available at that time. In protest, claimant informed his superior that he was "going to be A.W.O.L." on his shift. Although he was told by a Sergeant that he had to remain and work, claimant prepared to leave. Before he reached his car, the Sergeant intercepted him and relayed a direct order from a Lieutenant to remain at the facility. Claimant declined to obey that order, maintaining that it was not lawful. Claimant was given another notice of discipline, one which again improperly contained a reference to the 1989 notice of discipline. His union filed a grievance on his behalf. At the arbitration, held in April 1995, claimant pled guilty to failing to obey a direct order and was given a nine month suspension, retroactive to January 27, 1995.

Grievance and Arbitration of Second Notice of Discipline: In connection with the notice of discipline received at AMC, claimant's grievance was submitted to arbitration, as required by the applicable collective bargaining agreement. The arbitrator sustained the charge against claimant but modified the penalty from dismissal to suspension for one week, transfer to a post at Greene Correctional Facility (Greene), and prohibition on his seeking an assignment to AMC in the future. Claimant then petitioned in Supreme Court, pursuant to CPLR 7511, to vacate the part of the arbitrator's award that required him to transfer to Greene and prohibited him from bidding on AMC positions. Supreme Court denied the petition and affirmed the arbitrator's award, and the Third Department affirmed Supreme Court's decision (Matter of New York State Inspection, Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO (Department of Correctional Services of State of New York), 210 AD2d 859 [3d Dept Dec. 29, 1994, lv denied 85 NY2d 807 [April 27, 1995]).

Federal action: Claimant also commenced an action in the United States District Court for the Northern District of New York (No. 95-CV-1248), based on the entire series of interactions with his employer. Defendants' motion to dismiss that action was granted, with the Court finding no violation of the due process clause, the Thirteenth Amendment (involuntary servitude), or any other civil rights claims that could be the basis of a 42 USC §1983 action. The part of claimant's action that was based on contractual rights, the collective bargaining agreement, or allegations of unfair labor practices were also dismissed, as none of those presented a Federal question[4] (Sinacore v Department of Correctional Services, State of New York, 1995 WL 760660 [NDNY November 27, 1995]). On appeal, the Second Circuit affirmed, concluding that claimant's federal claims were devoid of merit (Sinacore v Department of Correctional Services, State of New York, 104 F3d 354 [2d Cir November 19, 1996]).

Court of Claims Action: On April 4, 1997, after the unsuccessful Federal action was completed, claimant commenced an action (Claim No. 95937) in the Court of Claims. The gravamen of his claim was that his employer, the State of New York, breached the terms of the 1989 consent decree by the subsequent references to that notice of discipline in the 1993 and 1995 notices. Counsel for defendant raised the affirmative defense of untimeliness in its answer. To correct this purported defect, claimant brought a motion for permission to file an untimely claim (Court of Claims Act §10[6]). This motion was denied as unnecessary because, although the claim was in fact untimely, defendant had failed to raise the defense with sufficient particularity to satisfy the requirements of Court of Claims Act §11(c) (Sinacore v State of New York, 176 Misc 2d 1 [Ct Cl Jan. 12, 1998]).

Subsequently, however, the State successfully moved for summary judgment dismissing the claim (Sinacore v State of New York, Claim No. 95937, Motion Nos. M-59023 and M-58196, July 26, 1999, King, J.). The grounds for this motion were that the cause of action for breach of contract was untimely and that claimant failed to state any other cause of action upon which relief could be granted. Summary judgment was granted on the ground that claimant failed to properly commence a claim for breach of contract against his employer, because he failed to allege that his union had breached its duty of fair representation (see, Civil Service Law §204; Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [Nov. 19, 1987]; Shah v State of New York, 140 Misc 2d 16, 19 [Ct Cl 5/31/88], affd 212 AD2d 876. The Third Department affirmed this ruling (Sinacore v State of New York, 277 AD2d 675 [3d Dept Nov. 16, 2000], lv denied 96 NY2d 706 [February 20, 2001], rearg denied 96 NY2d 824 [May 8, 2001]).

On May 14, 2003, claimant filed and served the instant claim. He alleges that the claim is premised upon "the fraudulent conduct, false statements, malicious prosecution and breach of contract" (claim, ¶3). This claim contains some different factual allegations, but the asserted causes of action nevertheless arise from the same transactions and occurrences that were involved in the earlier litigations. Essentially, there are three causes of action:

1) A claim for unemployment insurance benefits for the period that he was suspended (January 27, 1995 to October 26, 1995) as a result of the third notice of discipline. Claimant's application was denied because he was suspended for misconduct and because he could not, at the same time, be considered both an employee, albeit suspended, of DOCS and someone entitled to unemployment benefits. Damages sought: $10,800.00.

2) A challenge to the third notice of discipline of January 1995 based on the State's asserted lack of authority over claimant's movement during his off duty free time, a ten minute period from 10:35 P.M. to 10:45 P.M. on the evening of January 26, 1995. The significance of this ten minute period is neither apparent nor explained. Damages sought: $30,000.00.

3) A claim for slander and breach of contract arising from the State's referencing the 1989 notice of discipline in its brief submitted in June 2000 on the appeal of the Court of Claims decision (see Exhibit volume entitled "Appeals Pleadings," pp 23-39, 48-51). Damages sought: $500,000.00.

None of these causes of action are viable. Each cause of action is untimely. In addition, challenges to the rulings of the Department of Labor relating to unemployment compensation benefits are made by way of the appeal procedure set up by that agency, and judicial review is obtained by way of an Article 78 proceeding. Consequently, setting aside the issue of timeliness, this Court would not have jurisdiction to hear that portion of the claim. With respect to the second cause of action, claimant has failed to allege any facts to support the assertion that the State took some improper action in connection with a ten minute period of time on the evening of January 26, 1995. The third cause of action also has no merit, for claimant made the existence of the 1989 notice of discipline a relevant fact that must be addressed by all parties in order to present and discuss the facts underlying the litigation. In addition, the Third Department already ruled on this issue in August 2000, when it denied claimant's motion to redact those portions of the State's brief ("Appeals Pleadings," supra, p 54).

Because each of the causes of action is untimely and lacks arguable merit, defendant's motion is granted and Claim No. 107738 is dismissed. It is not necessary to determine whether they are also barred by the doctrine of res judicata.

June 17, 2004
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, Esq., AAG, with annexed Exhibits

2. Affidavit in Opposition (Answer to Motion) of Gerald Sinacore, pro se, with annexed 3-volume appellate record

Filed papers: Claim; Answer

[1] This account of the underlying facts is taken from the published decisions cited herein.
[2] One problem with this second notice of discipline was that it improperly referenced the 1989 notice, although claimant had fulfilled the conditions of the consent decree and that earlier notice should have been removed from his record. Upon claimant's protest, the second notice was amended to delete that reference.
[3] Claimant's right to recover these retroactive wages was established in a grievance/arbitration proceeding (see, Matter of New York State Governor's Office of Employee Relations and New York State Law Enforement Officers Union, District Council 82, AFSCME, AFL-CIO (Sinacore), 242 AD2d 756 [3d Dept Sept. 4, 1997]).
[4] Although Federal courts have jurisdiction over claims arising under the Labor Management Relations Act (29 USC §§ 152(2), 160, 185[a]), States are expressly excluded from its definition of "employer."