New York State Court of Claims

New York State Court of Claims

SYRKIN v. THE STATE OF NEW YORK, #2006-030-524, Claim No. 110738, Motion Nos. M-71122, CM-71179


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:
Third-party defendant's attorney:

Signature date:
April 5, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 7 were read and considered on Claimant's motion to strike certain affirmative defenses, and on Defendant's cross-motion for summary judgment dismissing the claim:
1-3 Notice of Motion; Affirmation in Support by James M. Maloney, Attorney for Claimant and attachments; Memorandum of Law in Opposition to Cross-Motion and in Reply on Motion

4,5 Notice of Cross-Motion; Affirmation of Gail Pierce-Siponen, Assistant Attorney General, and attached exhibits

6,7 Filed papers: Claim, Answer

Mark Syrkin alleges in his Claim that he was not reappointed to his position as an Assistant Professor in the Science Department of State University of New York (SUNY) Maritime College as a means of increasing the percentage of female professors in the department, as opposed to the financial concerns given as a rationale. In the Claim he indicates that on or about May 9, 2002 he was informed that his appointment - that was due to expire on August 31, 2003 - would not be renewed. [Claim Number 110738, ¶2]. Thereafter, Claimant alleges, on or about November 14, 2002, a reviewing committee convened pursuant to the collective bargaining agreement and sent a report to the Chancellor finding that there was no financial exigency and recommending reappointment. [id.].

Claimant further alleges that nonetheless, on or about May 5, 2003, the Chancellor made a final decision that the appointment would not be renewed past the August 31, 2003 expiration. [id.]. A copy of a letter dated May 5, 2003 from the Chancellor to Claimant is appended to the Notice of Intention as "Exhibit 1."

In the interim, two additional female faculty members were hired and/or retained, with one recommended for tenure in May 2003 and granted tenure in 2004; and the other "new faculty member . . .[was] granted a term appointment in 2003." [id.].

Claimant alleges that his termination constituted intentional discrimination in violation of Claimant's rights under the New York Constitution and statutory law including Human Rights Law, and was also a constitutional tort, all causing him damage in the amount of $645,000.00. [Claim No. 110738, ¶¶2 and 5]. He alleges a date of accrual of August 31, 2003, and also alleges that he served a Notice of Intention to file a Claim on August 4, 2003. [ibid. ¶¶4 and 5].

As acknowledged by the Assistant Attorney General, a Notice of Intention to file a claim was served[1] upon that office by certified mail, return receipt requested on August 6, 2003. [Affirmation by Gail Pierce-Siponen, Assistant Attorney General, ¶4, Exhibit A]. The claim itself was served on the Attorney General's Office by the same means on April 11, 2005, and filed with the Court of Claims on April 7, 2005. [ibid. ¶5, Exhibit B].

In its Answer, in addition to general denials, Defendant asserts eighteen (18) affirmative defenses, including, in the Fifth, Seventeenth and Eighteenth Affirmative Defenses respectively, a lack of jurisdiction due to the untimely service and filing of the claim, the inadequacy and prematurity of the notice of intention rendering the subsequent service of the claim as untimely, and a failure to adequately state the damages as required by Court of Claims Act §11. [Verified Answer, ¶¶8,20, 21].

An affirmative defense is raised in an Answer to provide adequate notice to the Claimant of issues of law or fact that the Defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a ". . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated."

A motion to dismiss such defenses may be made on the ground that ". . . a defense is not stated or has no merit." Civil Practice Law and Rules §3211(b). When evaluating such a motion, all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the proof submitted. Capital Telephone Co v Motorola Communications and Electronics, Inc., 208 AD2d 1150 (3d Dept 1994); Grunder v Recckio, 138 AD2d 923 (4th Dept 1988); 182 Fifth Avenue, LLC v Design Development Concepts, Inc., 300 AD2d 198 (1st Dept 2002); Arquette v State of New York, 190 Misc 2d 676, 688 (Ct Cl 2001). It is the movant who has the burden of coming forward and demonstrating that the defense cannot be maintained. Arquette v State of New York, supra at 688 (Ct Cl 2001). ". . . ‘If there is doubt as to the availability of a defense, it should not be dismissed'. . . (citations omitted)." [id.].

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 State 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.

The Notice of Intention served herein states, as to the "time when and place where claim arose," that "[t]he claim will accrue on August 31, 2003, unless the decision set forth in the attached Exhibit 1 is reversed." [Affirmation in Support by Gail Pierce-Siponen, Assistant Attorney General, Exhibit A]. The "decision" referred to is the letter from the chancellor dated May 5, 2003 telling Claimant he will not be reappointed when his term ends on August 31, 2003. [id.]. As noted above, the Notice of Intention was served on August 6, 2003.

The time within which a claim or a notice of intention to file a claim must be served is measured from its accrual. When a claim accrues is gaged generally from when damages are reasonably ascertainable, a principle held not to apply to personal injury claims which accrue on the date of the injury even if the full extent of the harm is not known until some time in the future. See generally McClurg v State of New York, 204 AD2d 999 (4th Dept 1994). Notably, when a claim of age discrimination in the employment context - at least with respect to constructive discharge - is at issue, ". . . [t]he proper focus in determining the accrual date of a cause of action . . . ‘is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful'. Delaware State College v Ricks, 449 US 250

. . . " Clark v State of New York, 186 Misc 2d 896, 898 (Sup Ct, Oneida County 2001); see also Clark v State of New York, 302 AD2d 942 (4th Dept 2003).

As noted in the papers filed by the Assistant Attorney General, serving a notice of intention that indicates a prospective date of accrual has only been countenanced in limited circumstances. For example, when an administrator of an estate is awaiting appointment, she may serve a notice of intention to file a wrongful death claim as a proposed administrator. Matter of Johnson v State of New York, 49 AD2d 136 (3d Dept 1975). Similarly, a subrogation action may be preserved by service of a notice of intention or claim prior to resolution of the underlying action as a means of protecting the subrogor's rights and placing the Court and other parties on notice of their claim. Atlantic Mutual Insurance Company v State of New York, 50 AD2d 356 (3d Dept 1976) affd, 41 NY2d 884 (1977). Both types of situations are in the nature of a derivative claim.

Additionally, however, a notice of intention to file a claim asserting causes of action for false arrest, false imprisonment and malicious prosecution was held to have been effective "to toll the Statute of Limitations with respect to all actions arising from the facts set forth therein, including the cause of action for malicious prosecution . . ." which, at the time the notice had been filed, had not yet accrued[2]. Budgar v State of New York, 98 Misc 2d 588, 593 (Ct Cl 1979). Serving a Notice of Intention containing a prospective date of accrual is not always fatal to preserving a claim, though it depends on the context.

Here, the Claimant is alleged to have suffered a direct injury. He appears to be asserting a cause of action for employment discrimination on the basis of age. In order to establish a cause of action for age discrimination under Human Rights Law [Executive Law §296], a claimant must demonstrate that (1) he is a member of a class protected by the statute, (2) he was actively (or constructively) discharged, (3) he was qualified to hold the position from which he was terminated, (4) and that the termination occurred under circumstances which give rise to an inference of age discrimination. Wiesen v New York University, 304 AD2d 459, 460 (1st Dept 2003). Since the claim herein would seem to be in a category of so-called disparate treatment claims, that is, Claimant alleges that he has received less favorable treatment because he is older and a male, and that the stated reason for his not being re-hired - financial constraints - is pretextual, Claimant would be required to establish that the discrimination was intentional.

The date of accrual asserted here, however, is somewhat murky.

How to determine the date of accrual has also been difficult for other courts trying to determine timeliness issues. Chardon v Fernandez, 454 US 6 (1981); Delaware State College v Ricks, 449 US 250 (1980); Williams v Environmental Defense Fund, 246 AD2d 644 (2d Dept 1998), revg. 170 Misc 2d 214 (Sup Ct, Kings County).

For example, in Williams v Environmental Defense Fund, supra, the trial Court decided that the date of accrual of the plaintiff's employment discrimination claim premised upon constructive discharge should be the date she ultimately resigned, rather than an earlier date when she went on disability leave. From the recitation of the facts, the last discriminatory acts occurred there prior to her going on disability leave. The Appellate Division reversed saying that the cause of action accrued when plaintiff went on disability leave not the date of her resignation.

In Delaware State College v Ricks, supra, the applicable limitations period was said to accrue from when the plaintiff alleging racial discrimination was denied tenure, not when his actual employment ended one year later. The illegal act is not the fact of termination, but rather the alleged racial discrimination in making the decision denying tenure. Similarly, in Chardon v Fernandez, supra, the majority decided that the statute of limitations for an action by certain administrators alleging that their employment termination was discriminatory, was measured from when the administrators were notified of a final decision that their employment would end, not when the employment ended.

Neither party has been helpful in giving guidance as to the law on the issue of accrual, apparently distracted by the arguments surrounding whether one can prospectively serve a Notice of Intention. Indeed, a fair reading of the Notice of Intention served here sufficiently alerts the State as to the nature of the claim and when it might have accrued if the pertinent law on accrual is considered. If there were no other problems, the Court would find that the Notice of Intention had performed its function and extended the period within which Claimant could serve and file his claim.

However, by application of the pertinent law on accrual, it is readily seen that the claim accrued on May 5, 2003 when notice was given that Claimant would not be reappointed, for allegedly illegal reasons: the discriminatory act. Accordingly, when Claimant served his Notice of Intention on August 6, 2003 it was more than ninety (90) days[3] after the claim had accrued, and did not operate to extend the time period in which the claim could be served upon the Defendant and filed in the Court of Claims. Court of Claims Act §10 (3-b). Thus, when Claimant served and filed his Claim in April 2005 it was untimely. [id.].

Having elected to proceed in the Court of Claims [See Koerner v State of New York, 62 NY2d 442 (1984)], Claimant is bound by the time constraints presented, as opposed to the more generous ones that might have been available in State Supreme Court. Brown v State of New York, 125 AD2d 750 (3d Dept 1986); Figueroa v State of New York, 126 Misc 2d 304 (Ct Cl 1984); see also Clancy v State of New York, 126 Misc 2d 292 (Ct Cl 1984).

Accordingly, Claimant's motion is hereby denied and Defendant's cross-motion to dismiss the claim in accordance with its Fifth Affirmative Defense is granted, and Claim Number 110738 is hereby dismissed in its entirety.

April 5, 2006
White Plains, New York

Judge of the Court of Claims

[1] Service upon the Attorney General is complete upon receipt. Court of Claims Act §11 (a)(i).
[2] A cause of action for malicious prosecution accrues when the criminal proceeding is terminated.
[3] Ninety-five (95) days.