New York State Court of Claims

New York State Court of Claims

MARCUS v. THE STATE OF NEW YORK, #2008-009-001, Claim No. 113606, Motion No. M-73506


Synopsis


Defendant’s motion to dismiss this claim, which was based upon allegations of constructive discharge from his “at-will” position in the State court system, was granted.

Case Information

UID:
2008-009-001
Claimant(s):
MARK MARCUS
Claimant short name:
MARCUS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113606
Motion number(s):
M-73506
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
WIGGINS, KOPKO & CRANE, LLP
BY: Edward E. Kopko, Esq., Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
January 8, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion pursuant to CPLR § 3211 seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of Michael R. O’Neill, Esq., Assistant Attorney General, Affidavit of G. Russell Oechsle, with Exhibits 1,2,3


Memorandum of Law (in support of motion) 4


Memorandum of Law (in opposition) 5


Reply Affirmation 6


Filed Papers: Claim.

In his filed claim, claimant alleges that he was constructively discharged from his position as Deputy Chief Clerk II in the Ithaca City Court. In this motion, defendant seeks dismissal of the claim, contending that claimant has failed to allege a cognizable cause of action. The following facts are not disputed.

In 2005 claimant, a long-time employee with the Unified Court System, was employed as a Supreme and County Court Clerk, Grade 18, in Monroe County. He had been employed in this position for several years. In the fall of 2005, the position of Deputy Chief Clerk II, Grade 21, in the Ithaca City Court became available. Claimant applied for that job, was nominated for appointment, and was approved for this position. Claimant began serving in this new position in the Ithaca City Court on January 26, 2006.

It is noted that claimant’s prior position (Supreme and County Court Clerk, Grade 18) was a competitive class position, and that the position of Deputy Chief Clerk II, Grade 21, was an exempt class position, pursuant to the Rules of the Chief Judge.

As permitted by the Rules of the Chief Judge (§ 25.22[d]), claimant took a one-year leave of absence from his prior job as Supreme and County Court Clerk in Monroe County, prior to commencing his duties in his new position at Ithaca City Court.

As he neared completion of his one year probationary status in his new position as Deputy Chief Clerk II (as well as approaching the end of his one year leave of absence from his prior position as Supreme and County Court Clerk in Monroe County), claimant alleges in his claim that on January 4, 2007, he a meeting with his immediate supervisor (James Jecen, Chief Clerk of Ithaca City Court). Claimant further alleges that in this meeting, claimant was advised by Mr. Jecen that his working conditions would be drastically altered, and his required working hours would be substantially increased. As a result of this meeting, claimant left his position as Deputy Chief Clerk II on January 24, 2007, and returned to his former position in Monroe County. Claimant alleges that he was constructively discharged from this position based upon the statements made by Mr. Jecen, his immediate supervisor, in the meeting of January 4, 2007.

It is well settled that in determining a motion to dismiss, a Court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88).

A constructive discharge occurs “only when an employer ‘deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation’ ” (Fischer v KPMG Peat Marwick, f/k/a Peat Marwick Main & Co., 195 AD2d 222, 225, quoting Pena v Brattleboro Retreat, 702 F 2d 322, 325). Since the issue is whether an employer has made working conditions so difficult that a reasonable person would feel forced to resign, and what a reasonable person would or would not do under such circumstances is a question of fact, the issue of constructive discharge normally is left to the tryer of fact (Fischer v KPMG Peat Marwick, supra, citing Bailey v Binyon, 583 F Supp 923).

In this particular matter, however, claimant, in his position as Deputy Chief Clerk II in the Ithaca City Court, was in the exempt class category, essentially making him an “at-will” employee. As an at-will employee, claimant could be fired “for good cause, bad cause, or no cause at all” (Lazaro v Good Samaritan Hosp., 54 F Supp 2d 180, 185, quoting Fadeyi v Planned Parenthood Ass’n of Lubbock, Inc., 160 F 3d 1048, 1051), as long as claimant was not fired for an illicit cause. In his claim, claimant does not allege any discrimination based upon age, race, gender, or disability pursuant to Executive Law § 296(1)(a), or that he was constructively discharged from his employment in the Ithaca City Court on the basis of any unlawful discriminatory practice (Peters v Citibank, N.A., 253 AD2d 803). This claim of constructive discharge is based entirely upon claimant’s meeting with his immediate supervisor and statements made by Mr. Jecen at this meeting, none of which contain any suggestion of unlawful discriminatory practice. As stated by Chief Judge Kaye, “animosity on the job is not actionable” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 298).

Based upon the foregoing, the Court finds that claimant has failed to allege a cognizable cause of action, and his claim must be dismissed.

Therefore, it is

ORDERED, that Motion No. M-73506 is hereby GRANTED; and it is further

ORDERED, that Claim No. 113606 is hereby DISMISSED.

January 8, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims