New York State Court of Claims

New York State Court of Claims

TOMMASI v. THE STATE OF NEW YORK, #2008-033-308, Claim No. 114676, Motion No. M-74592


Synopsis



Case Information

UID:
2008-033-308
Claimant(s):
ROSETTA TOMMASI
Claimant short name:
TOMMASI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the only properly named defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114676
Motion number(s):
M-74592
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Leeds, Morelli & Brown, P.C.By: No Appearance
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Anne C. Leahey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 22, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arises due to the alleged damages to Rosetta Tommasi (hereinafter “claimant”). Claimant raises causes of action against the State of New York (hereinafter “defendant”) and a number of individual defendants employed by defendant. The claim alleges sexual harassment of claimant by employees of defendant between September 13, 2005 and September 22, 2006.

The Court dismisses those causes of action against the individual defendants. The Court of Claims’ jurisdiction is limited to those causes of action which are brought against the State of New York for money damages (NY Const art VI §9).

The only cause of action alleged by claimant is a violation of claimant’s “federally protected constitutional rights secured by the Fourteenth Amendment to the Constitution of the United States, as well as 42 U.S.C. §§1983" (claim ¶39).

Defendant moves to dismiss the claim for the Court’s lack of subject matter jurisdiction and based on the untimeliness of the claim[2].

There is no opposition to the motion. On April 4, 2008, claimant’s counsel faxed a letter to the Court indicating claimant discharged her attorneys. The Court granted an adjournment of the submission of the motion from March 26, 2008 until May 14, 2008, to allow claimant to submit papers in opposition to the instant motion. To date, no papers have been submitted by or on behalf of claimant.

The cause of action by claimant which alleges a violation of 42 USC 1983 must be dismissed. The Court of Claims does not have jurisdiction over federal constitutional tort claims as the State is not a person within the meaning of 42 USC 1983 (Will v Michigan Dept. of State Police, 491 US 58; Monell v Dept. of Social Services of City of New York, 436 US 658).

Court of Claims Act §10(3) indicates that a claim is timely filed when it is served upon the Attorney General’s office and filed with the Court of Claims within 90 days of the date of accrual of a cause of action against the State of New York. A claimant may extend that time by serving a Notice of Intention upon the Attorney General’s office.

In the instant matter, claimant first went to the Equal Employment Opportunity Commission (hereinafter “EEOC”). The EEOC determined claimant had a right to sue and issued a letter to claimant stating the suit must be brought within 90 days of receiving the letter (Exhibit A to Le Moal-Gray Affirmation in support of defendant’s motion). Claimant received the letter on October 16, 2007 (Exhibit C to Le Moal-Gray Affirmation in support of defendant’s motion). The claim was filed with the Clerk of the Court on January 8, 2008, however, it was not served upon the Attorney General’s office until January 18, 2008.

Assuming, arguendo, the Court were to use the date of October 16, 2007 (as opposed to claimant’s termination date of September 22, 2006) the claim was served beyond the 90 days provided in Court of Claims Act §10(3). The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Kolnacki v State of New York, 8 NY3d 277; Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense.

Based upon the foregoing, defendant’s motion is granted and the claim is dismissed in its entirety.


September 22, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[2].The following papers have been read and considered on defendant’s motion: Notice of Motion to Dismiss dated February 25, 2008 and filed February 26, 2008; Affirmation of Anne C. Leahey, Esq. with annexed Exhibit A dated February 25, 2008 and filed February 26, 2008; Affirmation of Michele J. Le Moal-Gray with annexed Exhibits A-C dated February 25, 2008 and filed February 26, 2008; Defendants’ Memorandum of Law in Support of Motion to Dismiss dated February 25, 2008 and received February 26, 2008.