KOSINSKY v. THE CITY UNIVERSITY OF NEW YORK, #2006-030-520, Claim No. 110209,
Motion Nos. M-70752, CM-70929
Footnote (claimant name)
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
CRAIG J. J. SNYDER, P.C.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: GAIL PIERCE-SIPONEN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:
March 23, 2006
See also (multicaptioned
The following papers were read and considered on Defendant's motion to dismiss
[M-70752] and on Claimant's cross-motion for permission to serve and file a late
1,2 Notice of Motion; Affirmation by Gail Pierce-Siponen, Assistant Attorney
General and attached exhibits
3-5 Notice of Cross-Motion; Affirmation by Craig J.J. Snyder, Attorney for
Claimant; Affidavit in Support of Motion for Leave to File a Late Claim by
Joseph Kosinsky, Claimant, and attached exhibits; Memorandum of Law
Affirmation in Opposition by Gail Pierce-Siponen, Assistant Attorney General
Reply Affirmation in Support of Claimant's Cross-Motion for Leave to File a
8-11 Filed Papers: Claim, Answer, Amended Claim, Answer to Amended Claim
In the Verified Claim and Amended Verified Claim, Joseph Kosinsky alleges that
he was denied reappointment at Baruch College of the City University of New York
(hereafter CUNY) beginning with the Spring 2000 semester as the result of age
and disability discrimination as well as in retaliation for his complaints
concerning employment discrimination to the United States Department of Labor.
The dates of accrual alleged are "from on or about January 1, 2001 to October 1,
2003 on a continuing basis." [¶3 Verified Claim and Amended Verified
Claim]. In the Amended Verified Claim, the third and sixth causes of action add
in an incident that sounds like an assault cause of action allegedly occurring
on November 17, 2004, when Claimant alleges he was "forcibly removed . . . from
a Baruch facility . . ." [¶¶50 and 88, Amended Claim].
A notice of intention to file a claim was served on the Attorney General's
Office by certified mail, return receipt requested on October 27, 2003.
[Affirmation in Support by Gail Pierce-Siponen, Exhibit A]. It was not served on
CUNY. The notice of intention recites that the nature of the claim is age and
disability discrimination in failing to hire claimant, as well as retaliation
premised upon his having complained to the United States Department of Labor
concerning alleged discriminatory practices by CUNY. [id.]. The
notice indicates that the claim arose "during the period of January 1, 2000 to
October 1, 2003." [id.].
A second notice of intention to file a claim was personally served upon CUNY on
February 4, 2005, and was arguably served upon the Office of the Attorney
General on the same date. [ibid. Exhibit B]. An affidavit of service
dated February 4, 2005 indicates that a notice of intention to file a claim was
delivered to a document specialist in the Attorney General's Office who
indicated she was authorized to accept service. [Affidavit by Joseph Kosinsky,
Exhibit G]. Under Court of Claims Act §11(a)(ii), while this type of
personal service may be allowed vis a vis CUNY, in that "[p]ersonal
service upon any defendant shall be made in the same manner as described in the
civil practice law and rules," it is not allowed upon the State generally. Court
of Claims Act §11(a)(i) indicates that it is required that "[p]ersonal
service upon the attorney general shall be made in the same manner as described
in section three hundred seven of the civil practice law and rules." Civil
Practice Law and Rules §307 requires that personal service upon the State
be by hand delivery to the Attorney General or to an Assistant Attorney General,
not someone simply authorized to accept service for other reasons.
The accrual date alleged in the second notice of intention is November 9, 2004
and the nature of the claim is described as assault, battery and personal injury
by agents of CUNY in denying Claimant access to a public function. [Affirmation
in Support of Gail Pierce-Siponen at Exhibit B]. Contrary to Claimant's
statements in his papers, it does not speak of anything other than this
incident, wherein Claimant was allegedly denied access to a public function. In
any event, it is a nullity.
Thereafter, a Verified Claim was served on the Attorney General's Office by
certified mail, return receipt requested on December 15, 2004, and served upon
CUNY by certified mail, return receipt requested on December 14, 2004. It was
filed in the Office of the Chief Clerk of the Court of Claims on December 13,
2004. [ibid. ¶6]. A Verified Answer was served on January 24, 2005.
Within statutory time constraints for amendments without leave of court
[See Civil Practice Law and Rules §3025(a)], an Amended Verified
Claim was served on the Office of the Attorney General on January 31, 2005 by
regular mail. It does not appear that CUNY was served with a copy of the
Amended Verified Claim. The State served its Verified Answer to the Amended
Verified Claim on March 10, 2005.
Defendant argues that the claim should be dismissed since Claimant failed to
timely and properly serve CUNY with either a notice of intention to file a
claim, or a claim, within ninety (90) days of its accrual. This Court agrees.
Whenever a claim is made against CUNY, not only must the Office of the Attorney
General be timely served with a notice of intention to file a claim, or a claim,
within ninety (90) days, but CUNY must also be served. Court of Claims Act
§11(a)(ii); Education Law §6224(4); Flynn v City University of New
York at Brooklyn Coll., 6 AD3d 656 (2d Dept 2004); Brinkley v City
University of New York, 92 AD2d 805 (1st Dept 1983); Krales v City
University of New York, 128 Misc 2d 168, 169 (Ct Cl 1985); Sessions v
City University of New York, UID# 2000-016-085, Claim No. 100265, Motion No.
M-61774 (October 4, 2000, Marin, J.).
It is axiomatic that litigants must comply with the requirements of Court of
Claims Acts §§10 and 11. Failure to timely and properly serve a notice
of intention to file a claim and a claim upon the proper party creates a defect,
which, if properly raised by Defendant in its Answer or in a pre-answer motion,
renders the claim subject to dismissal based upon this court's lack of
jurisdiction over the parties. Flynn v City University of New York at
Brooklyn Coll., supra.
Court of Claims Act §11(b) requires that a notice of intention ". . .
state the time when and place where such claim arose, [and] the nature of same .
. ." The purpose of the notice of intention is to put the Defendant on notice
of potential suit against it, so that it may investigate the claim and infer a
theory of liability. It also acts to extend the period within which a Claim
must be served and filed, provided it has been properly served and contains the
required information. While it need not be scrutinized with the same attention
as a pleading, it should nonetheless perform its notice function, as well as
provide specific enough information to determine whether any subsequently served
and filed Claim is timely filed.
In this case, since the notice of intention was not served on all the
appropriate parties, the Claimant could not then take advantage of an additional
one (1) or two (2) year time allowance provided for in Court of Claims Act
§10 within which to serve and file a claim. The subsequently served and
filed Verified Claim, apparently served by the proper means, is nonetheless
The second notice of intention, even if it were properly served, would only be
effective to preserve an intentional tort cause of action in the nature of
assault. It post-dates both the service of the original verified claim and the
amended verified claim.
Finally, since the original claim was jurisdictionally defective, Claimant
cannot simply amend it in any event. Civil Practice Law and Rules §3025;
Grande v State of New York, 160 Misc 2d 383, 385-386 (Ct Cl 1994);
McGough v State of New York, 41 Misc 2d 78, 81 (Ct Cl 1963).
The statute provides in pertinent part ". . . [n]o judgment shall be granted in
favor of any claimant unless such claimant shall have complied with the
provisions of this section applicable to his claim..." See Court of
Claims Act § 10. The provisions concerning service and filing have been
strictly construed. See e.g. Welch v State of New York, 286
AD2d 496 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707
(3d Dept 2000). Defendant properly preserved the issue in its Ninth Affirmative
Defense, thus there has been no waiver. Court of Claims Act §11(c).
Defendant's motion to dismiss [M-70752] is, accordingly, granted in all
respects, and Claim number 110209 - both the original claim and the amended
claim - is dismissed in its entirety.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated therein
are: (1) whether the delay in filing the claim was excusable; (2) whether the
State had notice of the essential facts constituting the claim; (3) whether the
State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears meritorious; (5) whether substantial prejudice
resulted from the failure to timely serve upon the Attorney General a claim or
notice of intention to file a claim, and the failure to timely file the claim
with the Court of Claims; and (6) whether any other remedy is available. The
Court is afforded considerable discretion in determining whether to permit the
late filing of a claim. See e.g. Matter of Gavigan v State of New
York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v
New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New
York, 288 AD2d 172 (2d Dept 2001).
A copy of the proposed Claim
, must accompany
the motion, allowing the Court to ascertain the particulars of the claim,
including the date of accrual, specific location of the alleged incident, and
what injuries are alleged. See,
Court of Claims Act §11(b).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed ". . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . ." § 10(6) Court of Claims Act.
As noted by the Assistant Attorney General, the first consideration is whether
the application for late claim relief is timely. The claim attached to
Claimant's moving papers asserts a date of accrual of November 9, 2004
generally, and then labels causes of action seriatim as Count III
(sic), Retaliation in Violation of the New York State Human Rights
Law; Count II (sic),Retaliation in Violation of the New York City
Human Rights Law; Third Cause of Action (sic), Assault; Third Cause of
Action (sic), Battery; Fourth Cause of Action (sic), False
Imprisonment. These will be referred to by the Court as the first through fifth
causes of action.
Addressing the last three causes of action, namely the third (assault), fourth
(battery) and fifth (false imprisonment) causes of action, the date of accrual
alleged is, by reference to preceding paragraphs in the proposed claim, November
9, 2004. According to the affirmation of service attached to the moving papers,
the motion was served on November 9, 2005. A motion is "made, when a notice of
motion . . . is served." Civil Practice Law and Rules §2211; see also
Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983). The
applicable statute of limitations is one year, thus the motion is, marginally,
timely with respect to those causes of action. Civil Practice Law and Rules
The first cause of action, alleging retaliation in violation of New York State
Human Rights Law, does not allege a date of accrual except to recite that
"between July 1, 2004 and December 31, 2004" Claimant was denied "access to
public areas, public functions and functions to which claimant has been invited
at Baruch." Claimant also recites a specific instance of such denial as the
incident alleged to have occurred on November 9, 2004. Claimant also indicates
that this conduct "constitutes retaliation in violation of New York State Human
(. . . Exec. L. §296(1)(e))."
Causes of action alleging employment discrimination in violation of the New
York State Human Rights Law must be commenced within three (3) years of accrual.
Civil Practice Law and Rules §214(2); Koerner v State of New York,
62 NY2d 442 (1984); Jones v State of New York, 149 AD2d 470, 471 (2d Dept
1989). Since an alleged violation of the New York City Human Rights Law most
closely resembles ". . . a liability, penalty or forfeiture created or imposed
by statute . . . " [Civil Practice Law and Rules §214(2)], a three (3) year
statute of limitations would apply rendering the motion timely with respect to
this cause of action as well.
Factors under Court of Claims Act §10(6)
Claimant's affidavit in support of his motion essentially repeats the
allegations contained in the proposed claim, although in somewhat more detail.
He does not at all address the required factors the Court must evaluate in
determining whether late claim relief should be afforded. See Court of
Claims Act §10(6). The initial affirmation in support submitted by
Claimant's counsel on the motion does not address any of the factors either,
although the Memorandum of Law submitted at the time indicates "Claimant, acting
pro se, incorrectly believed he had correctly served the First NOI and Claim,"
[See Memorandum of Law, Page 8], furnishing the excuse part of the
equation, and then also alludes to notice, opportunity to be heard and
Thus while Claimant has not offered any acceptable excuse for the delay, the
absence of an excuse is but one of the factors to be considered, and does not
necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York
State Employees' Retirement System Policemen's & Firemen's Retirement
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh toward granting Claimant's motion. Any
documentation would presumably be maintained by Defendant's agents, including
personnel files, grievance documents and the investigation undertaken in
connection with Claimant's grievance and federal court claims. Additionally, the
passage of time has not been so great that the State's ability to investigate is
impeded to its prejudice. Edens v State of New York, 259 AD2d 729 (2d
Additionally, and as argued by Claimant, he has no alternative remedy, having
withdrawn his claim in federal court on July 3, 2003 based upon arguments made
by the State in that court that the State of New York was not governed by the
Federal Americans with Disabilities Act
Affirmation in Support by Craig J.J. Snyder, ¶5]; see
42 USC §1201 et seq
.; Kimel v Florida Bd. of
, 528 US 62 (2000)(re: Age Discrimination in Employment Act, 29
et seq); Small v Caiola
, 2000 WL 781080 (SDNY 2000).
It does not appear that Claimant has otherwise elected his remedies by pursuing
his claim administratively with the New York State Commission on Human Rights.
Executive Law §297(9); Carter v State of New York
Claim No. None, Motion No. M-64045 (Read, P.J., October 29, 2001); Vargas v
City University of New York
, UID#2000-019-512, Claim No. 100326, Motion Nos.
M-60917, CM-61307 (Lebous, J., April 19, 2000).
In a Reply Affirmation, Counsel states, interestingly, "Defendant's opposing
papers do not dispute claimant's contentions as to issues other than whether the
claim appears meritorious" [Reply Affirmation by Craig J.J. Snyder, ¶ 5].
Although this misapprehends exactly whose burden it is to satisfy the Court that
late claim relief is warranted, there is indeed some truth to the fact that the
appearance of merit is essentially the decisive factor on these motions.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates that there is reasonable cause to believe that a
valid cause of action exists. Matter of Santana v New York State Thruway
Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima
facie case at this point, but rather the appearance of merit. See
e.g. Jackson v State of New York, Claim No. None, Motion No. M-64481
(Midey, J., February 28, 2002).
Reviewing the proposed claim under these standards, the Claim does not have the
appearance of merit as required with respect to the first and second causes of
action, but does have the appearance of merit with respect to the third, fourth
and fifth causes of action for assault, battery and false imprisonment,
First Cause of Action - Executive Law §296(1)(e)
With respect to the first cause of action, at the time Claimant was allegedly
denied access to public functions or areas at Baruch College - according to the
claim "between July 1, 2004 and December 31, 2004" and/or November 9, 2004 - he
was not an employee, and had not been an employee since 1999 - Defendant argues
that because Claimant was not an employee at the time, against whom alleged
discriminatory practices were waged, the cause of action will not lie.
To establish a claim of retaliatory discriminatory conduct in violation of
Executive Law §296(1)(e)
, a Claimant must
show (1) that Claimant engaged in conduct protected by Executive Law §296
(2) that the employer was aware Claimant was engaged in protected conduct; (3)
that Claimant suffered from a disadvantageous employment action based upon the
participation in protected conduct; and (4) there is a causal connection between
the protected activity and the adverse action taken by the employer. Pace v
Ogden Services Corp.
, 257 AD2d 101, 104 (3d Dept 1999); see also
Matter of Pace University v New York City Commn. on Human Rights
NY2d 125 (1995).
Under this rubric, Mr. Kosinsky has not established the appearance of merit
with respect to the first cause of action. Claimant was last employed by the
Defendant in the Fall semester of 1999 as an adjunct lecturer in the Department
of Economics and Finance at Baruch College. [Affidavit in Support by Joseph
Kosinsky, ¶5]. When Claimant was first denied reappointment, six (6) years
ago, he filed a charge with the United States Department of Labor on September
27, 2000 - investigated and defended by Defendant - commenced union grievances
on or about January 14, 2000 and September 20, 2002; and commenced an action in
the United States District Court for the Southern District of New York.
[ibid. ¶¶ 11-16].
If it were the successive failures to reappoint Claimant that were alleged in
this proposed claim, it might well be that Claimant could show the appearance of
merit with respect to the remaining elements of this cause of action.
Claimant's version of events is given the greater weight because Defendant did
not offer any factual affidavit by someone with knowledge regarding Claimant's
employment with Baruch. Certainly, there is "a disadvantageous employment
action" in not being able to get a job and, there could be a causal connection.
But that is not what this claim is.
It is not disputed that Claimant engaged in protected activity by pursuing
these avenues with regard to Defendant's alleged discriminatory practices, but
it is only the alleged denial of access between July 1, 2004 and December 31,
2004 and the alleged incident of November 9, 2004 that can be the subject of
this claim - not the successive failures to reappoint. The salient fact is not
that he was not a current employee at the time of the alleged retaliatory acts,
but rather that the acts are not "disadvantageous employment actions,"
contemplated by the protections of Executive Law §296(1)(e), nor is there
any visible nexus between the protected activity, and preventing Claimant from
attending on-campus events some years later. See Electchester Housing
Project, Inc. v Rosa, 225 AD2d 772,773 (2d Dept 1996); Landwehr v Grey
Advertising Inc., 211 AD2d 583 (1st Dept 1995). This is not a denial of
unemployment insurance benefits [Electchester Housing Project, Inc. v
Rosa, supra], for example, or a failure to appoint an individual to
alternate work. Landwehr v Grey Advertising, Inc., supra.
Based upon the allegations in the proposed claim, Claimant has not established
the appearance of merit with regard to the first cause of action.
Second Cause of Action - New York City Administrative Code
It is axiomatic that the Court of Claims is a Court of limited jurisdiction,
that may only exercise jurisdiction in cases or controversies for money damages
in which the State or - certain statutorily prescribed entities such as CUNY -
is a party. Court of Claims Act §9. This is not, however, the forum to
litigate an alleged violation of a local law of the City of New York.
See Vargas v City University of New York, UID#2000-019-512, Claim
No. 100326, Motion Nos. M-60917, CM-61307 (Lebous, J., April 19, 2000).
Even if it were, similar considerations to those concerning alleged violations
of the State statute obtain [see Matter of Pace University v New York
City Commn. on Human Rights, supra], and the appearance of merit is
not established under these facts.
Third and Fourth Causes of Action - Assault and Battery
Civil assault is defined generally as an intentional attempt or threat to do
injury or commit a battery. Battery is the intentional and wrongful physical
contact with another person without that person's consent. Coopersmith v
Gold, 172 AD2d 982, 983 (3d Dept 1991); Mason v Cohn, 108 Misc 2d 674
( Sup Ct, New York County, 1981), See Clayton v Keeler, 18 Misc
488 ( Sup Ct, New York County, 1896).
Viewing the proposed Claim in the light most favorable to the Claimant, the
third and fourth causes of action have the appearance of merit.
Fifth Cause of Action - False imprisonment
To establish a cause of action for false imprisonment, a claimant must show ".
. . (1) the defendant intended to confine him, (2) the . . . [claimant] was
conscious of the confinement, (3) the . . . [claimant] did not consent to the
confinement and (4) the confinement was not otherwise privileged . . . "
Broughton v State of New York, 37 NY2d 451,456 (1975).
Viewing the allegations in the proposed claim in the light most favorable to
the Claimant, this cause of action, too, has the appearance of merit.
Accordingly, Claimant's motion for permission to serve and file a late
is granted in part and denied in part.
Claimant is directed to serve and file a claim alleging only the third, fourth
and fifth causes of action for assault, battery, and false imprisonment, within
sixty (60) days of the filing date of this decision and order, with such
service and filing to be in accordance with the Court of Claims Act §§
10, 11 and 11-a, the Uniform Rules for the Court of Claims, and the applicable
provisions of the Education Law and the Civil Practice Law and Rules.
March 23, 2006
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
Court of Claims Act § 10(6) states in
pertinent part: ". . . The claim proposed to be filed, containing all of the
information set forth in section eleven of this act, shall accompany such
application . . . "
It is unclear why this is the case, but this
is how Claimant explained the withdrawal of his federal court action. See
Menes v City University of New York
, 92 F.Supp.2d 294 (SDNY
2000)(lawsuit against CUNY premised upon violation of the Americans with
This section of the statute provides: "(1) It
shall be an unlawful discriminatory practice: . . . (e) For any employer, labor
organization or employment agency to discharge, expel or otherwise discriminate
against any person because he or she has opposed any practices forbidden under
this article or because he or she has filed a complaint, testified or assisted
in any proceeding under this article."
The Court is not unmindful that Claimant,
through Counsel, filed another Claim - identical to the proposed Claim that is
the subject of this late claim motion - on November 2, 2005 that was given
Claim Number 111577 by the Clerk's Office, and that has been Answered by
Defendant. The service and filing of Claim Number 111577 does not satisfy the
requirements of this Decision and Order concerning late claim relief. Defendant
may choose to make the appropriate motion with regard to Claim Number