New York State Court of Claims

New York State Court of Claims

FLOYD v. THE STATE OF NEW YORK DIVISION OF HUMAN RIGHTS, #2008-016-062, Claim No. 113494, Motion No. M-75175


Claim alleging that the negligence of the New York State Division of Human Rights caused claimant to miss the deadline for bringing a claim with the EEOC was dismissed as untimely.

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):

Alan C. Marin
Claimant’s attorney:
Robert Anthony Evans, Jr., Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ellen S. Mendelson, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 17, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the claim of Betty Floyd on the ground that it was untimely served and filed. In such claim, Ms. Floyd alleges that the New York State Division of Human Rights failed to timely process a claim on her behalf to the U.S. Equal Employment Opportunity Commission. That claim arose from her termination from her employment at a department store in Manhattan on August 31, 1992. Ms. Floyd alleges that her claim in this court “accrued on the 24th day of February 1993

. . .” (claim, ¶4), which is a date on which she met with a representative from the Division of Human Rights to pursue an action against her employer. It is unclear from the submissions exactly what happened thereafter, but attached to Ms. Floyd’s claim is a letter dated January 24, 1996 on which she was copied, advising that her case “was not dual-filed, because the complaint was brought on July 26, 1993, more than 300 days after the date of the last discriminatory incident; i.e. Ms. Floyd’s termination on August 31, 1992. EEOC requires that cases be filed within 300 days of the discriminatory incident. Accordingly, this case was not filed with the EEOC . . .” See page 22 of the attachments to the claim. See also an April 12, 1996 letter from the Division of Human Rights to Ms. Floyd (p. 27 of the attachments to the claim).

In any event, whether Ms. Floyd’s claim accrued on February 24, 1993 as she alleges, or on some later date, such as the EEOC deadline for filing, or when she learned that the claim had not been so filed, Ms. Floyd did not serve and file her claim in this court until March 22, 2007 and March 26, 2007, respectively - - more than ten years later.

Ms. Floyd’s claim is cast in terms of both negligence and intentional tort. In either case, §§10.3 and 10.3-b of the Court of Claims Act (the “Act”) require that the claim be served and filed within 90 days of accrual. Claimant has pointed to no actions by defendant that would extend or toll such time for filing or, for that matter, the three-year statute of limitations.[1]

In view of the foregoing, I find that the claim in this case was untimely for the purposes of the Act. “It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . .” Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In sum, this court lacks jurisdiction over the claim of Betty Floyd.

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-75175 be granted and that claim no. 113494 be dismissed.

November 17, 2008
New York, New York

Judge of the Court of Claims

  1. [1]Although she has not made a motion re same, claimant refers in her papers to §10.6 of the Act, which under certain circumstances permits the service and filing of a late claim. However, relief thereunder is not available if the applicable statute of limitations has expired.
  2. [2]The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A and B; the “Affirmation of Robert Anthony Evans, Jr. Esq., Showing Cause Why the Motion to Dismiss Should Be Denied” with exhibits 1 through 7; and defendant’s reply affirmation.