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,
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
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
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.