New York State Court of Claims

New York State Court of Claims

HILLS v. STATE OF NEW YORK, #2008-040-073, Claim No. NONE, Motion No. M-75010


Synopsis


Court of Claims Act § 10(6) motion to late file denied as Movant failed to establish merit of causes of action.

Case Information

UID:
2008-040-073
Claimant(s):
ALLEN A. HILLS
Claimant short name:
HILLS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75010
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Stephen G. DeNigris, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Saul Aronson, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 24, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Movant’s application to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.

The proposed claim asserts that: Movant began his career with the New York State Police (“State Police”) on October 14, 1968 and became a Trooper; Movant first applied for promotion to the State Police Bureau of Criminal Investigation (“BCI”) in 1978; such a promotion involved an increase in salary and other benefits; on May 8, 1980, the State Police promoted and assigned Movant to the BCI; however, Movant was not advised that he had been promoted and did not perform the duties of a BCI Investigator; Movant worked as a State Trooper until he retired on January 11, 1989; Movant would not have retired in 1989 if he had received the promotion and assignment to BCI. Movant further alleges that he lost approximately $42,950 in salary by not being notified of the promotion and not being assigned to BCI; that his retirement pay is approximately $3,177 per year less than it would have been had he been promoted to BCI Investigator; and that he lost approximately $60,363 in retirement benefits over the past 20 years.

Movant asserts that he received a copy of his personnel file in 2001. In reviewing the file, he learned that he had been promoted to the BCI in 1980. The proposed claim asserts causes of action for breach of contract and fraudulent concealment.

In determining whether to grant a motion to file a late claim, Section 10(6) of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant may also be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

Perhaps the most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

The proposed claim asserts that Movant was “promoted and assigned . . . to the BCI” on May 8, 1980 (proposed claim, ¶ 8) based upon information taken from the personnel file that was provided to Movant in 2001. There is a notation in the file dated May 8, 1980, “Assignment to the Bureau of Criminal Investigation” (see Ex. A attached to proposed claim). There is also a letter, dated December 3, 2001, from Martin T. Probst, State Police Assistant Director of Personnel, which states Movant “received an appointment to the Bureau of Criminal Investigation on 5/8/80” (id.). The letter states Movant received an appointment to BCI and the note calls it an assignment. Movant refers to it as a “promotion” entitling him to additional pay. However, Movant has not provided any proof, either documentary or by affidavit of someone with knowledge of State Police personnel matters, to support his contention that his “appointment” or “assignment” to BCI was a “promotion.”

In that regard, the Executive Law and BCI regulations provide that the Superintendent of State Police may “assign” members of the State Police to the BCI (Exec. Law § 216[1]; 9 NYCRR § 476.1[a]). It appears that members of the State Police “serve in the BCI at the pleasure of the superintendent . . . The superintendent determines whom he deems fit for service as investigator. Return to the uniform force is not discipline under the scheme but, rather, a proper determination that in the superintendent’s opinion the member is no longer qualified for or no longer belongs in the BCI” (Matter of Petix v Connelie, 61 AD2d 65, 68-69 [3d Dept 1978]; affd 47 NY2d 457 [1979]).

Based upon the record now before it, the Court is unable to determine whether it has jurisdiction over the proposed claim, or whether resolution of the matter requires a proceeding in Supreme Court pursuant to article 78 of the Civil Practice Law and Rules.[1] The Court of Claims has exclusive jurisdiction with respect to claims for money damages against the State (Court of Claims Act §9[4]; Morell v Balasubramanian, 70 NY2d 297, 300 [1987]; Bertoldi v State of New York, 275 AD2d 227, 228 [1st Dept 2000]). At the same time, it is a court of limited jurisdiction with no authority to grant strictly equitable relief, as where a claim seeks to annul an administrative determination by a state agency. The latter constitutes “a quintessential example of a dispute governed under CPLR article 78” (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004]). “Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case” (Gross v Perales, 72 NY2d 231, 236 [1988]). While “there is no universally accepted standard or test to be applied in making such a determination” (Safety Group No. 194 v State of New York, Ct Cl, Claim No. 101826, Motion No. M-62770; Claim No. None, Motion No. M-62647, April 11, 2001, Sise, J., 2001 WL 939747, affd 298 AD2d 785 [3d Dept 2002]), such an inquiry requires that the Court consider what it “would have to do to award a money judgment” (Ouziel v State of New York, 174 Misc 2d 900, 905 [Ct Cl 1997]).

In this instance, the motion, proposed claim, and supporting documents, do not identify with sufficient precision the facts and issues that the Court is being asked to resolve – what the Court would have to do in order to award a money judgment in this matter. Movant argues, in effect, that his assignment, appointment, or promotion (however it is styled) is a question of fact and, that fact having been established, his proposed claim is one to recover money damages for back pay and retirement benefits to which he was and is entitled, and which have been withheld from him improperly. Defendant asserts, to the contrary, that the proposed claim, in reality, challenges the propriety of an administrative action (or, in this case, inaction) by the State Police in failing to promote, or failing to notify Movant of his promotion, and that the money damages sought are “merely incidental” to a judicial review of that administrative determination. The Court concludes that the notation in the personnel file and Mr. Probst’s letter, alone, are insufficient to show that the superintendent of State Police, in fact, determined that Movant should serve in the BCI. Further, if he did so, Movant has failed to demonstrate the nature and consequences of that action and the rights, if any, that accrue to him as a result thereof.

In addition, with respect to the cause of action for fraudulent concealment, the Court notes that Movant fails to set forth sufficient facts to show that the cause of action is not patently groundless, frivolous or legally defective in that he has failed to allege sufficient facts that the State intended to defraud him (see Swersky v Dreyer and Taub, 219 AD2d 321, 326 [1st Dept 1996]). Moreover, Movant asserts that he discovered the promotion to the BCI in 2001. A motion to late file a claim pursuant to Court of Claims Act § 10(6) may only be considered if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired.

Turning to the breach of contract cause of action, the underlying statute of limitations is six years (CPLR § 213[2]). The proposed claim asserts that a portion of the claim accrued while Movant was employed by the State Police and accrued each pay period from May 8, 1980 through January 11, 1989. Since the latter date is more than 19 and a half years ago, the six-year statute of limitations has passed and that portion of the proposed claim is barred. Movant also asserts that a breach of contract action accrues when he receives each monthly retirement check (January 11, 1989 to present). Movant provides no case law to substantiate his assertion of a continuing breach of contract. On the other hand, if Movant is correct that this portion of the proposed claim accrues each month, then, ostensibly, the cause of action is timely and there is no need to seek permission to file a late claim.

The Court concludes that Movant has failed to show: (1) that the Court has jurisdiction over the proposed claim; (2) that the proposed claim is not patently groundless, frivolous or legally defective; and (3) that, based upon the entire record, there is reasonable cause to believe that a valid cause of action exists. The Court, therefore, finds that Movant has failed to demonstrate the appearance of the proposed claim’s merit.

As a demonstration of the Claim’s apparent merit is an essential prerequisite to the granting of the relief sought, the Court must, at present, deny the motion without prejudice to the right of Movant to reapply for permission to file a late claim within forty-five (45) days of the date of the filing of this order, in which event, Movant is to cite the facts upon which he relies to show the Court’s jurisdiction, as well as the merits of his causes of action. The Court has not considered nor does it rule upon any of the other factors listed in § 10(6) of the Court of Claims Act.


October 24, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read by the Court on Movant’s motion for permission to file a late claim pursuant to Court of Claims Act § 10(6):

Papers Numbered


Notice of Motion, Affidavit in Support,

Movant’s Affidavit in Support , Proposed
Claim & Exhibits attached 1

Affirmation in Opposition 2

Reply Affidavit in Support 3



[1]. See Presiding Judge Sise’s opinion in Safety Group No. 194 v State of New York, Ct Cl, Claim No. 101826, Motion No. M-62770; Claim No. None, Motion No. M-62647, April 11, 2001, Sise, J., 2001 WL 939747, for a comprehensive overview of this question.