New York State Court of Claims

New York State Court of Claims

GRAY v. STATE OF NEW YORK, #2007-037-023, Claim No. 109750, Motion Nos. M-72650, CM-72769


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:
John Feroleto, Attorneys at LawBy: David W. Polak, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. Morcio, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Defendant’s motion for summary judgment (M-72650) and Claimant’s cross-motion to dismiss affirmative defenses raised in Defendant’s answer (CM-72769):
1. Defendant’s notice of motion and supporting affidavits of Assistant Attorney General

Wendy E. Morcio, sworn to December 7, 2006, with annexed Exhibits A-Q; Mary T. Mayville, sworn to November 21, 2006; and John B. Lempke, sworn to November 7, 2006;

2. Claimant’s notice of cross-motion and supporting affirmation of David W. Polak,

Esq., dated December 27, 2006, with annexed Exhibits A-B;

3. Reply affidavit of Assistant Attorney General Wendy E. Morcio, in response to

Claimant’s cross-motion, sworn to January 29, 2007;

4. Affirmation of David W. Polak, Esq., in opposition to Defendant’s motion, dated

March 7, 2007, with annexed Exhibits A-B;

5. Reply affidavit of Assistant Attorney General Wendy E. Morcio, in support of

Defendant’s motion for summary judgment, sworn to April 18, 2007.

Filed papers: Claim filed August 23, 2004; Answer filed September 30, 2004.

Defendant moves for an order pursuant to CPLR §3212 granting summary judgment on all of Claimant’s causes of action. Claimant opposes the relief and cross-moves for an order dismissing certain of Defendant’s affirmative defenses. Because a determination of Defendant’s motion could obviate the necessity of deciding Claimant’s cross-motion, the Court will address Defendant’s motion for summary judgment first.

The following recitation of facts, which purportedly give rise to the claim against the State of New York, is based upon the Court’s review of the written and oral submissions of counsel for the parties. For the last thirteen years, Claimant has been employed by the New York State Department of Correctional Services (DOCS) as a civilian Correction Counselor at Gowanda Correctional Facility (Gowanda). While engaged in his employment, Claimant alleges that he was subjected to harassment by Correction Officer Donna Kraft (CO Kraft) on May 20, 2002, when she delayed his passage through a security checkpoint, and on August 21, 2003, when she glared at him in the facility cafeteria. Claimant filed complaints with DOCS officials, which allegedly resulted in additional unspecified acts of harassment by CO Kraft thereby creating a hostile work environment. The pending claim asserts causes of action against Defendant for a hostile work environment, negligence and discrimination.

It is well-settled that on a motion for summary judgment, the Court is called upon to determine whether a bona fide issue exists. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Although the Court must review the submissions in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976 [1983]), and summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]), bald, conclusory assertions and the “shadowy semblance of an issue” are insufficient to defeat a summary judgment motion (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]; see also S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). Rather, it is incumbent upon a party who opposes a summary judgment motion to “assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [claim] are real and capable of being established upon a trial” (DiSabato v Soffes, 9 AD2d 297, 301 [1959], app dismissed 11 AD2d 660 [1960]; see also Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, supra). Such facts must be presented by evidentiary proof in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

The Court finds that Defendant has made an adequate prima facie showing of entitlement to summary judgment and Claimant has responded with only conclusory or unsubstantiated assertions of counsel which are not sufficient to preclude summary relief (see American Motorists Ins. Co. v Salvatore, 102 AD2d 342 [1984]). Indeed, Claimant’s opposition to the summary judgment motion amounts to little more than a contention that the alleged harassing conduct was not limited to the two incidents set forth in the Claim but then fails to provide the Court with specific events or evidence in support thereof.

Claimant’s first cause of action alleges that he was subjected to a hostile work environment and DOCS did nothing to prevent it. In order to establish the existence of a hostile work environment, a claimant must show that the workplace was permeated with discriminatory insults, ridicule, and intimidation and that the conduct complained of was severe and pervasive enough to alter the conditions of the victim’s employment (see Tomka v Seiler Corp., 66 F3d 1295 [1995]; Baliva v State Farm Mut. Auto. Ins. Co., 286 AD2d 953 [2001]). Unless the alleged conduct is extraordinarily severe, isolated remarks or occasional episodes of harassment will not merit relief (Matter of Macksel v Riverhead Cent. School Dist., 2 AD3d 731 [2003]; San Juan v Leach, 278 AD2d 299 [2000]).
Ultimately, whether conduct is sufficiently abusive depends on the totality of the circumstances including, among other things: the frequency of the alleged conduct; its severity; whether the conduct is physical, humiliating, or merely an “offensive utterance”; whether it interfered with work performance; and whether it affected the claimant’s psychological well-being (see Harris v Forklift Systems, Inc., 510 US 17 [1993]). “To be actionable, the alleged conduct must be both objectively and subjectively offensive, such that a reasonable person would find the behavior hostile or abusive, and such that the plaintiff herself, did, in fact, perceive it to be so” (San Juan v Leach, supra at 300).

Here, Claimant has alleged that CO Kraft harassed him twice over a fifteen-month period and, accepting his allegations as true (and even assuming there may have been other unspecified incidences as alleged by his counsel), none of the incidents were sufficiently severe to constitute a hostile work environment. CO Kraft’s conduct involving harassment, staring at Claimant and delaying his passage, while aggravating, is relatively mild when analyzed from the standpoint of a reasonable person. Two isolated, fairly insignificant incidents fail to demonstrate that the workplace was permeated with hostility. When viewed as a whole, the incidents did not occur with a regularity that could be deemed pervasive. Nor should such incidents have unreasonably interfered with Claimant’s work performance, particularly since Claimant and CO Kraft did not actually work together. Furthermore, there is no allegation that Claimant’s employment status as a civilian counselor was in any way affected by his interaction with CO Kraft.

Claimant also alleges that DOCS personnel either acquiesced in the complained of conduct or subsequently condoned it by inaction. However, it is apparent from the documents before the Court that DOCS did not condone the alleged conduct, as evidenced by the reasonable manner in which it investigated Claimant’s complaints and attempted to take corrective action (see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44 [1996]).

Claimant’s second cause of action for negligence is misplaced and must be dismissed. An employee cannot sue his or her employer for injuries caused by negligent hiring, negligent supervision, or negligent retention (Maas v Cornell Univ., 253 AD2d 1[1999], affd 94 NY2d 87 [1999]; Greene v Trustees of Columbia University, 234 F Supp 2d 368 [2002]). Where an employee is injured by the negligence or wrong of another in the same employ, the exclusive remedy is under the Workers’ Compensation Law (Maas v Cornell Univ., supra at 3). The exception to this exclusivity is when “an employer cannot be held vicariously liable for its employee’s torts, ‘the employer can still be held liable under theories of [negligent retention and supervision if] the employer knew or should have known of the employee’s propensity for the conduct which caused the injury’ (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [citations omitted]).” (Samide v Roman Catholic Diocese of Brooklyn, 194 Misc 2d 561, 574 [2003]; Stohner v State of New York, Ct Cl, November 9, 2004, Fitzpatrick, J., Claim No. 105668, Motion Nos. M-67775, CM-67902).[1] There are no facts or allegations in the claim to support such a finding.

Finally, Claimant’s third cause of action alleges that he was the victim of discrimination in the workplace because he is a Native American, is under a disability and has a prior criminal record. A claimant alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination.[2] To meet this burden, Claimant must show that: (1) he is a member of a protected class; (2) he was qualified to hold the position; (3) he was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Ferrante v American Lung Assn., 90 NY2d 623 [1997]).

The first two elements necessary to establish a claim of discrimination are not in dispute. Claimant is a Native American and is qualified for the job he holds with DOCS. He has, however, failed to raise a triable issue of material fact as to whether he was terminated from employment or suffered any adverse employment action under circumstances giving rise to an inference of discriminatory motive. An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be “more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices...unique to a particular situation” (Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2000] [citations and internal quotation marks omitted]).

Claimant has offered no evidence that he was terminated from his employment or suffered any adverse action or material change in the terms and conditions of his employment. Simply put, Claimant has failed to raise an issue of fact as to whether he was discriminated against on the basis of his race, alleged disability or criminal record. The record does establish that Claimant and CO Kraft do not care for one another and they have both filed complaints which resulted in warnings, followed by more complaints and more warnings, and while many fair inferences could be drawn from the record as to the motives underlying such events, discriminatory animus is not one of them. Mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws “become a general civility code” (Faragher v City of Boca Raton, 524 US 775, 788 [1998] [citation and internal quotation marks omitted]).

Accordingly, it is hereby

ORDERED that Defendant’s motion for summary judgment is granted and the claim is dismissed in its entirety; and it is further

ORDERED that Claimant’s cross-motion is denied as moot.

May 8, 2007
Buffalo, New York

Judge of the Court of Claims

[1]. Unreported Court of Claims decisions may be found at the Court of Claims website at
[2].The standards for recovery under the New York State Human Rights Law (Executive Law § 296) are the same as the federal standards under title VII of the Civil Rights Act of 1964 (42 USC § 2000e, et seq.) (see Ranier N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326 [2003]; Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21 [2002]).