New York State Court of Claims

New York State Court of Claims

JOHN BRADLEY v. CITY UNIVERSITY OF NEW YORK, #2008-036-331, Claim No. 113455, Motion Nos. M-74872, CM-74984


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:
By: Anthony Mallilo, Esq. Francesco Pomara, Jr., Esq.
Defendant’s attorney:
By: Gwendolyn Hatcher, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 25, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion for leave to file a late claim and defendant’s cross-motion to dismiss the original claim. Claimant John Bradley asserts that while employed as a steam fitter by defendant City University of New York (“CUNY”), he was harassed and physically assaulted by fellow employees at CUNY, and moves pursuant to Court of Claims Act § 10 (6) for leave to file a late claim.[1] On December 5, 2005 and December 6, 2005, claimant, originally pro se, served a notice of intention to file a claim on the Attorney General’s office and the City University of New York, respectively. Then claimant retained counsel and on February 5, 2007 served a claim (Claim No. 113455) on the Attorney General and on February 13, 2007 served CUNY. Thereafter, claimant filed his claim on March 16, 2007. Defendant’s answer asserted jurisdictional affirmative defenses, including that the first and third causes of action for assault and battery were barred by the one-year statute of limitations and that the claim failed to “include an adequate description of the location of the incident alleged in the claim or any adequate description of the manner in which the incident occurred.” Ex. B to Affirmation in Support of Cross-Motion [to dismiss the claim] and in Opposition to Claimant’s Motion [to file a late claim], dated May 20, 2008. At a conference before the court on February 14, 2008, the court noted the initial claim did not plead where the incident took place with sufficient specificity to allow defendant to investigate the incident, and the court indicated it would entertain a motion to dismiss the claim. On claimant’s motion here, claimant attached a stipulation discontinuing the original claim but the stipulation was not signed by defendant. On oral argument, defense counsel said defendant never received the stipulation. In response, claimant’s counsel assured the court he had intended to, and did, withdraw the initial claim. Based on that representation, the court grants defendant’s cross-motion to dismiss the initial claim, as acceded to by claimant.

The proposed claim asserts claimant was assaulted and battered by a fellow employee and harassed by that employee and one other, and alleges that defendant, as employer, is responsible for the actions of these employees under the doctrine of respondeat superior. Claimant further alleges that “from approximately January 2004 to July 2006, [claimant] was repeatedly harassed by fellow employees” and that he complained of the harassment to his supervisors and representatives from various CUNY departments, none of whom did anything to stop or prevent the harassment. See Ex. F to Moving Affirmation of Francesco Pomara, Jr., dated April 22, 2008 (“Moving Affirmation”). In support of the motion, claimant also submits an affidavit providing additional details relating to his allegation that defendant failed to do anything when he was assaulted and harassed. Ex. E to Moving Affirmation. Defendant opposes claimant’s motion on grounds, among others, that the proposed claim does not appear to be meritorious because (i) to the extent it asserts causes of action for intentional torts they are barred by the one-year statute of limitations, (ii) to the extent it asserts causes of action for employer negligence, claimant’s exclusive remedy is under the Workers’ Compensation Law, and (iii) the proposed claim fails to allege facts sufficient to show claimant’s fellow employees acted within the scope of their employment.

Section 10 (6) of the Court of Claims Act gives the court broad discretion to permit late claim filings. (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 [Ct Cl 1977]). The statute identifies six factors to be considered by the court, among others: whether the delay is excusable; whether defendant had notice of the claim’s essential facts; whether defendant had an opportunity to investigate the claim; whether the claim appears to be meritorious; whether defendant would be substantially prejudiced by a late claim; and whether the claimant has an available alternative remedy. The most important of these factors is whether the proposed claim appears to be meritorious, as it would be futile to permit the filing of a legally deficient claim which would be subject to an immediate dismissal. (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]). To appear to be meritorious, a claim “must not be patently groundless, frivolous or legally defective,” and the record as a whole must give “reasonable cause to believe that a valid cause of action exists.” (Matter of Santana, 92 Misc 2d at 11).

The proposed claim here is far from a model of clarity. Because of this, the court posed a number of questions during oral argument aimed at obtaining from claimant’s counsel a clear statement of when the alleged misconduct ended, and under what legal theory claimant contended that defendant, as employer, could be held legally responsible for the intentional torts of assault and battery, and intentional infliction of emotional distress. The court recessed to permit claimant’s counsel to call his client in order to respond to the court’s inquiries. Counsel then reported back to the court that, while claimant is still employed at CUNY, the alleged harassment ceased by September 2006. Counsel was unable to point to any facts which would support a claim that defendant’s supervisory personnel to whom claimant complained intentionally failed and refused to stop the harassment. Rather, counsel asserted that defendant’s supervisory personnel were negligent but did not join with its employees to intentionally inflict emotional distress on claimant.

The court concludes the proposed claim is legally defective in that claimant has not proposed a cause of action which would withstand a motion to dismiss.

The first cause of action pleads the intentional torts of assault and battery, as well as a tort denominated as “harassment,” all of which defendant is alleged to be responsible for under the doctrine of respondeat superior. Yet claimant has not offered any facts to show that the fellow employee who allegedly assaulted and battered him, and the employees who allegedly harassed him, did so within the scope of their employment. “When the doctrine of respondeat superior is invoked it must be shown that the person committing the act was an employee of the party sought to be charged, and that the act was committed within the scope of such employment.” (Hacker v City of New York, 26 AD2d 400, 403 [1st Dept 1966], affd, 20 NY2d 722 [1967], cert denied, 390 US 1036 [1968]). Also, claimant does not allege that the superiors to whom he complained, or any person employed at defendant in a managerial capacity, directed claimant’s fellow employees to assault and batter, or to harass claimant. (See Hahne v State of New York, 290 AD2d 858 [3rd Dept 2002] “where, as here, a tort is committed solely for the personal motives of the employee and is unrelated to the furtherance of the employer’s business, no liability will attach”). There is nothing to suggest that claimant’s fellow employees acted other than for personal motives, or that management could have foreseen these employees’ duties would result in an assault and battery or harassment of claimant. (See e.g. Conde v Yeshiva University, 16 AD3d 185, 187 [1st Dept 2005] wherein an action for assault and battery and for intentional infliction of emotional distress employee “clearly acted beyond the scope of his employment, motivated by private concerns that were not even remotely related to any conduct YU could have foreseen in the performance of his duties”).

The first cause of action would be barred in any event by the one-year statute of limitations applicable to the intentional torts of assault and battery. CPLR § 215 [3]. The assault and battery complained of is alleged to have taken place on September 9, 2005, over two and one-half years before claimant made this motion for leave to late file. As for claimant’s allegation that he was subjected to “harassment” in addition to assault and battery, New York does not recognize such a common law cause of action. (Daulat v Helms Bros., Inc., 18 AD3d 802, 803 [2d Dept 2005]). Even assuming the first cause could be read to plead the tort of intentional infliction of emotional distress, this, too, cannot pass muster. Public policy prohibits an action against the State for intentional infliction of emotional distress. (Brown v State of New York, 125 AD2d 750 [3d Dept 1986], lv dismissed, 70 NY2d 747 [1987].)

The second cause of action is purely a negligence claim alleging claimant was

continuously harassed “from approximately January 2004 to July 2006” and that claimant’s supervisors and other responsible persons employed by defendant in the Public Safety, Security and Human Resources departments “negligently did nothing to prevent the harassment” of claimant, and that “as a result of the foregoing [claimant ] has been damaged.” An employee who seeks recompense for on-the-job injury must pursue his exclusive remedy under the Workers’ Compensation Law § 11. There are a few limited exceptions to this, such as where an employee is injured by an intentional tort of a co-employee at the direction of their employer. (See e.g. Martinez v Canteen Vending Services Roux Fine Dining Chartwheel, 18 AD3d 274, 275 [1st Dept 2005]). Claimant does not, however, allege that the offending co-employees’ misconduct toward claimant was directed by their supervisors or that the supervisors intentionally participated in the harassment, only that the managers were negligent in not stopping claimant’s fellow employees from harassing him. Claimant has even presented evidence on this motion which suggests defendant did take claimant’s complaints seriously, as when defendant’s administrative superintendent wrote that the college “will not tolerate abusive, antagonistic behavior.”[2] Accordingly, the second cause of action also is legally defective. (See also Rice v University of Rochester Medical Center, 46 AD3d 1421, 1423 [4th Dept 2007], “To state a cause of action against an employer pursuant to the intentional injury exception, however, plaintiff was required to allege that her employer engaged in conduct ‘with the desire to bring about the consequences of the act’” [citation omitted]).

The third cause of action is a reiteration of the allegations contained in the first two, with the allegation that “solely by reason of the aforesaid, and the intentional assault and battery and harassment” by defendant, claimant has “suffered extreme emotional, psychological and mental distress, and anxiety.” To the extent the cause of action pleads an intentional tort, it, too, does not allege sufficient facts on which to predicate defendant’s liability under the doctrine of respondeat superior, and such a claim for infliction of emotional distress would be barred against the State and by the one-year statute of limitations in any event.

In sum, defendant’s motion to dismiss Claim No. 113455 is granted, having been acceded to by claimant, and claimant’s motion for leave to file a late claim is denied.

August 25, 2008
New York, New York

Judge of the Court of Claims

[1]. The following papers were read on claimant’s application for leave to file a late claim: Notice of Motion, dated April 22, 2008, together with the Affirmation of Francesco Pomara, Jr., dated April 22, 2008, and Exhibits attached thereto; Notice of Cross-Motion, dated May 20, 2008, together with the Affirmation in Support of Cross-Motion and in Opposition to Claimant’s Motion of Gwendolyn Hatcher, dated May 20, 2008 and Exhibits attached thereto; Affirmation in Opposition of Francesco Pomara, Jr., dated June 13, 2008, and Exhibit attached thereto; and Reply Affirmation of Robert J. Schwerdt, dated June 25, 2008 and Exhibit attached thereto.
[2]. In claimant’s effort to show that defendant had ample opportunity to investigate claimant’s complaints, claimant attaches to his affidavit a memorandum from defendant’s administrative superintendent of office facilities stating that with respect to the alleged September 9, 2005 assault and battery, the college “will not tolerate abusive, antagonistic behavior” and that “[a]ny further exasperation [sic] of the situation by either party will be dealt with by Human Resources in an official capacity.” Also attached is a letter dated September 29, 2006 from the CUNY acting director of human resources stating that the investigations conducted by the college’s Public Safety and Security departments uncovered “questionable responses by witnesses regarding these incidents.” The letter states that “[s]ince the individual who was claimed to be evolved [sic] has since left the college the college believes the situations [sic] has been rectified,” and further states that since the acting director of human resources had not heard anything from the claimant or the union “I am considering this issue closed.”