New York State Court of Claims

New York State Court of Claims

AGIN v. CITY UNIVERSITY OF NEW YORK, #2007-036-243, , Motion No. M-73749


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
By: Anne C. Leahey, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 27, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Movant, Dr. Denise Agin, requests leave to file a late claim under Court of Claims Act § 10 (6) concerning her rejection for a faculty position at York College of the City University of New York (“CUNY”). CUNY, after stating it is the only proper defendant to the action, opposes the motion.[1], [2] Dr. Agin holds an Ed.D. degree and has been employed as a faculty member in the Department of Health, Physical Education and Gerontological Studies and Services at York College for over eight years. In early 2006, she formally applied for an open Movement Science Line position in the Department. She alleges that Dr. David Ajuluchukwu, the Department chair, previously had promised her the position when the incumbent retired without her even needing to apply for it. She further alleges that in the spring of 2006, Dr. Ajuluchukwu told her although she was the best candidate she was being passed over for the position.

The proposed claim states Dr. Agin had relied upon Dr. Ajuluchukwu’s false promises and devoted herself to her employment at York College without seeking out other possible employment opportunities. She contends Dr. Ajuluchukwu knew his promises to be false and never intended to offer her the position. In September 2006, Dr. Agin brought the matter to the attention of Dr. Marcia V. Keizs, the president of York College, who, according to Dr. Agin, informed her two months later she was of the view the charges were unfounded. Dr. Keizs suggested she file a grievance with her union PSC/CUNY, but the union would not accept the grievance, according to Dr. Agin.
Dr. Agin’s prior counsel commenced an action in Supreme Court, Nassau County on February 8, 2007 against York College, CUNY, the State and Dr. Ajuluchukwu. Her present counsel asserts that prior counsel was unaware the Court of Claims has exclusive jurisdiction over damage suits against CUNY. When defendants moved to dismiss the Supreme Court action, Dr. Agin withdrew it. By then, the time to file a claim or a notice of intention to file one in the Court of Claims had lapsed. Dr. Agin does not specifically provide an excuse for her delay in filing here, but presumably expects her counsel’s error by filing in Supreme Court to be considered as such. CUNY counters that her counsel’s mistake about the proper forum for bringing this action is not an acceptable excuse for delay.[3]
Dr. Agin’s proposed claim is based on theories of fraud and promissory estoppel grounded in Dr. Ajuluchukwu’s alleged misrepresentations. She argues that by presenting facts which allegedly constitute the requisite elements of each of these causes of action, she has offered a claim to satisfy the § 10 (6) consideration that “the claim appear[] to be meritorious.” Rosario v State of New York, 2005 NY Slip Op 50981U, 10 [Ct of Cl 2005] (“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. Claimant need not establish a prima facie case at this point, but rather the appearance of merit”) (Citation omitted). CUNY counters that the proposed claim consists only of conclusory allegations which are insufficient to establish its merit. Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980] (“Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements”).
In further support of its position regarding the proposed claim’s lack of merit, CUNY argues this was an employment decision, a discretionary determination for which it has privilege or qualified immunity. Matter of McIntosh v Borough of Manhattan Community College, 78 AD2d 839 [1st Dept 1980] affd 55 NY2d 913 [1982] (“Generally, the courts may not interfere with the administrative discretion exercised by an educational institution unless the circumstances disclosed by a record leave no scope for the use of that discretion in the manner under scrutiny”). Dr. Agin counters that CUNY is not immune to liability because she is not asking for a review of a discretionary employment or academic decision, but rather seeks compensation for fraudulent misrepresentation. She cites Lachica v. State of New York, 139 Misc 2d 772 [Ct Cl 1988] (Claim No. 68248) alone on this point, a case also cited by CUNY in support of its view that discretionary determinations are immune from challenge.
In Lachia, a physician was denied entry to the third year of a surgical residency program at Downstate Medical Center. She was permitted to file a late claim against the State for breach of an alleged employment contract. When she moved for summary judgment on liability, defendant cross-moved to dismiss the claim. The court decided for defendant, stating “the present action may not be maintained by the claimant because the determination not to approve her for entry into the third-year residency program was professional discretionary action on an academic appointment, a decision which the court should not review in the context of an action for damages.” 139 Misc 2d at 775. Dr. Agin argues the Lachia holding dismissing the claim is less significant than the fact that the physician was permitted to file a late claim, thereby lending support to the ostensible merit of a claim akin to the one she seeks to bring here. The court there said: “It is not unknown that a finding of an appearance of merit (Court of Claims Act § 10 [6]) has been made in an opinion allowing the late filing of a claim, and that, subsequently, the claim was dismissed on the merits.” Id. at 773 (Citation omitted). But immediately before it dismissed the claim, the court also observed that the issue of merit was “not specifically addressed in the previously cited opinion regarding the application to late file [this claim].” Id. at 775. Lachia thus offers no assistance to Dr. Agin’s attempt to lend merit to a claim pertaining to discretionary action on an academic appointment.
CUNY finally asserts the proposed claim lacks merit because Dr. Agin has not demonstrated she exhausted her administrative remedies. Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375 [1975] (“The doctrine of exhaustion of administrative remedies requires litigants to address their complaints initially to administrative tribunals, rather than to the courts, and to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts”) (Internal punctuation omitted). According to CUNY, Dr. Agin is a member of PSC/CUNY, a union with a collective bargaining agreement with CUNY, and she must pursue a grievance procedure with the union in an employment dispute. Dr. Agin responds that CUNY’s position on the supposed administrative remedies available to her is unsupported. No copy of the collective bargaining agreement is provided. No affidavit of a CUNY employee or a union official is submitted to establish the existence or character of the alleged grievance procedure. Additionally, she asserts the union rejected a grievance which she did file with it, thus demonstrating the futility of her pursuing administrative remedies. Lehigh Portland Cement Co. v New York State Dept of Envtl. Conservation, 87 NY2d 136, 140 [1995] (“exhaustion of administrative remedies is not required where an agency's action is challenged as beyond its grant of power or when resort to an administrative remedy would be futile”).
This court, after consideration of the discretionary factors under Court of Claims Act § 10  (6), finds there is an insufficient showing that the criteria for filing a late claim are satisfied here. Movant’s explanations of the reason for her delay in filing in this court and the merits of her proposed claim, simply are inadequate. A suggestion that prior counsel was inadequately informed about the jurisdiction of the Court of Claims is insufficient reason for delay in these circumstances. See, Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982] (“The Court of Claims properly found that the delay in filing was not excusable. This finding is supported by the fact that claimant attributed the failure to timely file a claim or notice of intention to her retained North Carolina attorneys’ ignorance of and unfamiliarity with New York law”); Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413 [2d Dept 2004]; Quilliam v State of New York, 282 AD2d 590 [2d Dept 2001]. As discussed, supra, movant’s attempt to rely upon Lachica v State of New York, supra, to divine merit in legal theories she applies to the conclusory allegations of her pleading pertaining to Dr. Ajuluchukwu’s conduct also does not succeed. What is left, then, is movant’s dissatisfaction with a discretionary academic determination. “[When] determinations rest . . . upon the subjective professional judgment of trained educators, the courts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community.” Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408, 413 [1980]. Given what movant has presented in support of her motion, the court declines to permit a discretionary filing here.
The motion to file a late claim is denied.

November 27, 2007
New York, New York
Judge of the Court of Claims

[1].The court, sua sponte, has deleted the State of New York from the caption as an improperly named defendant.
[2].The court considered the following papers on this motion: claimant’s notice of motion, together with affidavit of support dated July 16, 2007 and exhibits; defendant’s affirmation in opposition dated September 14, 2007; claimant’s reply affidavit dated October 22, 2007.
[3].Dr. Agin also argues CUNY is not prejudiced by a late filing because she had two meetings with Dr. Keizs which afforded CUNY with ample notice of the circumstances of her claim and ample opportunity to investigate them. By Dr. Agin’s account, Dr. Keizs rejected her charges in November 2006 after having investigated them. Dr. Agin also sent Dr. Keizs a letter with a copy of her Supreme Court complaint at the time the action was commenced in February 2007. She contends CUNY thus had the necessary information pertaining to the claim on a timely basis. CUNY does not deny having adequate notice, nor does it assert it will have suffered any prejudice from a late filing, no less the “substantial prejudice” which is one of the factors to be considered by the court under § 10 (6).