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.
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
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
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
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)."
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
. 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
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.