RASMUS v. THE STATE OF NEW YORK, #2009-015-517, Claim No. 114959
Claim was dismissed following trial. Claimant failed to establish liability in
contract or quasi-contract.
1 1.The Caption is amended sua sponte to reflect the only properly named
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
sponte to reflect the only properly named defendant.
FRANCIS T. COLLINS
Jill Rasmus, Pro Se
Honorable Andrew M. Cuomo, Attorney General
Michael C. Rizzo,
EsquireAssistant Attorney General
June 24, 2009
See also (multicaptioned
Claimant, pro se, brings this action to recover certain expenses incurred in
moving from Connecticut to New York in reliance upon defendant's alleged offer
of employment. The case proceeded to trial on March 31, 2009.
The claimant testified that on October 24, 2007 she applied for a position with
the Department of Environmental Conservation (DEC) involving chronic wasting
disease. Instead, claimant alleges that she was offered a position as a Turkey
Technician by Melissa Neely, a DEC employee. In an email dated November 24,
2007 (Exhibit 3-3) Ms. Neely states:
"For the Turkey Technician Position I need you to fill out the attached
application and sign it. You can either fax it or scan and email it back to me.
I'll let you know more about a potential start date on Monday. I'd guess in
about two weeks by the time paperwork goes through".
Ms. Rasmus submitted an employment application (HR-1) for the DEC Turkey
Technician position on November 25, 2007 (Exhibit 1).
The claimant testified that in early December she located an apartment in Glens
Falls, New York, but did not sign a lease at that time because she did not have
an official start date for the Turkey Technician position at DEC. Through
emails and telephone conversations with Ms. Neely from DEC the claimant learned
that her employment application and paperwork, although complete, had not yet
received final approval. During a subsequent telephone conversation with Ms.
Neely, the claimant was advised that a rocket launching training day would be
held on December 20, 2007 and that she could begin work as a Turkey Technician
at that time even absent formal approval of her employment application. Ms.
Neely allegedly informed the claimant that she would be compensated for days
worked prior to approval of her application through additional vacation time.
In response to her conversation with Ms. Neely, the claimant signed a lease for
an apartment in Glens Falls, New York (Exhibit 6) and moved from her home in
Connecticut on December 17, 2007. On December 19, 2007 the claimant contacted
Ms. Neely by phone to discuss details regarding her first day of employment.
She was at that time informed that she could not begin work because her
employment application had not received final approval. The claimant returned
to her home in Connecticut on the evening of December 19, 2007 after sending the
following email message to Ms. Neely (Exhibit 3-8):
"[w]hen you had first said i could work on Thursday i was under the impression
you meant start work then and make up all the time later on . . . thats why i
came up here. So there's no way of doing that except for Thursday?
Do you think the paper work will not go thru at all? I'm just trying to get a
better feel for if i should be looking for something else or if i should still
On December 27, 2007 Melissa Neely emailed the claimant stating, in part
"I apologize for the confusion. I had hoped it would go through by Thursday as
I wanted you to take the Rocket Net training. I do think the paperwork will go
Claimant contacted her landlord following receipt of Ms. Neely's email and
provided notice of her intention to vacate the apartment she had leased in Glens
Falls. Her landlord released her from her obligations under the lease as of
February16, 2008. In early February, 2008 the claimant received a voice mail
message from Ms. Neely indicating that her employment application had received
final approval. The claimant sent the following email to Ms. Neely on February
7, 2008 (Exhibit 3-15):
"I have received your message about the job.
Unfortunately, for nearly two months now I have been paying rent and heating
bills on an apartment I cannot use because I do not have a job. And these bills
have since wiped out my savings. Unless I can be reimbursed for these charges,
there is no way I will be able to afford living in NY for this position".
The claimant was subsequently informed by Ms. Neely that she would not be
reimbursed for any of the expenses incurred prior to approval of her employment
application whereupon she declined to accept the Turkey Technician
On cross-examination the claimant testified that she interviewed for the Turkey
Technician position with Ms. Neely by phone in late November, 2007 and
thereafter completed an employment application. Ms. Rasmus testified that she
was not aware that her application required further approval until receiving an
email from Ms. Neely on December 4, 2007. According to the claimant, she was
informed by Ms. Neely that she could begin work on December 20, 2007. Although
she would not be paid until her application for employment was formally
approved, Ms. Neely advised that she could begin work on December 20, 2007 and
would be compensated at a later time for days worked without pay.
The claimant rested at the conclusion of her cross-examination and the
defendant called Melissa Neely to the stand. Mr. Neely testified that she is
employed by the Department of Environmental Conservation as a Senior Wildlife
Biologist. During the latter months of 2007, Ms. Neely was a Wildlife Biologist
trainee in the DEC's Upland Game Bird Program. In this position, Ms. Neely
was charged with identifying qualified candidates for seasonal jobs within her
area of responsibility, including technicians to be involved in a Wild Turkey
Project. The witness testified that she received 25 applications from
individuals interested in the Seasonal Turkey Technician position. She
contacted the claimant by phone and advised her that, in Ms. Neely's opinion,
the claimant was the best candidate for the job and that she should complete and
submit a formal application. At that time Ms. Neely advised the claimant that
she hoped the application would be approved by mid-December, 2007. She denied
that she ever informed the claimant that she could begin work on any particular
day and that she never advised the claimant that she should obtain an apartment
prior to approval of her application.
Despite the fact that her employment application had not received formal
approval, Ms. Neely advised the claimant that a Rocket NetTraining Day would be
held on December 20, 2007 and that she could attend the training on a voluntary
basis. According to the witness the training would involve the use of rockets
to net wild turkeys and involved the use of Class C explosives. Ms. Neely
denied that she advised the claimant she could begin work on December 20, 2007
and related that she simply advised claimant she could attend the rocket
training day to be held on that date. Ms. Neely communicated with the claimant
by phone and email throughout the period from mid-December, 2007 through
January, 2008. Emails to the claimant from Ms. Neely during this period reflect
that approval of the claimant's employment application was delayed and that DEC
personnel, including Ms. Neely, were doing all that was possible to secure
necessary approvals. Claimant's application for employment was finally approved
on January 30, 2008.
On cross-examination, the witness acknowledged that she was aware that claimant
was coming to the Warrensburg area in search of an apartment in late November,
2007 (Exhibit 3-4, 3-5, 3-6).
To the extent the instant claim alleges a cause of action for breach of
contract, it fails as a matter of law. The elements of a cause of action for
breach of contract are (1) existence of a valid contract, (2) performance by
claimant, (3) defendant's failure to perform, (4) resulting in damage to the
claimant (Noise In Attic Prods., Inc. v London Records, 10 AD3d 303 [
2004]; Furia v Furia, 116 AD2d 694 ). Here, claimant failed to
establish the existence of a valid contract. Creation of a binding contract
requires "a manifestation of mutual assent sufficiently definite to assure that
the parties are truly in agreement with respect to all material terms . . .
Generally, courts look to the basic elements of the offer and the acceptance to
determine whether there is an objective meeting of the minds sufficient to give
rise to a binding and enforceable contract . . . The first step then is to
determine whether there is a sufficiently definite offer such that its
unequivocal acceptance will give rise to an enforceable contract" (Matter of
Express Indus. and Term. Corp. v New York State Dept. of Transp., 93 NY2d
584, 589  [citations omitted]).
In the instant matter it is clear that the offer of employment was conditional,
and therefore indefinite, in that it was understood by the parties that the
claimant's application was subject to approval. This fact is apparent from Ms.
Neely's email dated November 24, 2007 (Exhibit 3-3). Accordingly, to the extent
the claim is one for breach of contract, it fails as a matter of law.
Nor can the claimant recover damages on the theory of promissory estoppel. "
'To establish a promissory estoppel it must be shown that the defendant made a
clear and unambiguous promise upon which the [claimant] reasonably relied to his
or her detriment' " (Clifford R. Gray, Inc. v LeChase Constr. Servs., 51
AD3d 1169 , quoting Roufaiel v Ithaca Coll., 241 AD2d 865, 869
). While estoppel is generally unavailable against the State of New York
except in extraordinary circumstances "[a] governmental agency may be subject
to estoppel when a manifest injustice has resulted from actions taken in its
proprietary or contractual capacity" (Allen v Board of Educ. of Union Free
School Dist. No. 20, 168 AD2d 403, 404 , appeal dismissed 77
NY2d 939 ). As a result, where a public agency's misconduct has induced
justifiable reliance by a party who then changed her position to her detriment,
application of the doctrine of promissory estoppel is appropriate (id.).
In the instant matter, however, claimant has failed to establish both a clear
and unambiguous promise and her reasonable reliance thereon. Claimant was
advised prior to moving to New York that her application required approval, and
on December 4, 2007 claimant was advised only that her application had "made it
through the majority of hoops" necessary to hire her for the position
(claimant's Exhibit 3-7). Although the claimant alleges Ms. Neely explicitly
stated that she could start her employment beginning with the rocket training
day, and would be compensated at a later date for time worked prior to approval
of her employment application, this assertion is denied by Ms. Neely.
Importantly, claimant's email to Ms. Neely dated December 19, 2007 (Exhibit 3-8)
indicates Ms. Neely informed claimant she "could work on Thursday" and not that
she could begin her employment on that date. Ms. Neely's statement as
memorialized in claimant's email undermines the claimant's testimony regarding
her conversation with Ms. Neely and negates a finding that Ms. Neely made an
unambiguous promise upon which the claimant reasonably relied to her detriment.
In fact, the December 19, 2007 email supports the conclusion that the only
"unambiguous promise" made by Ms. Neely was that the claimant could attend the
rocket training session to be held on Thursday, December 20, 2007. As a result
the Court finds the claimant failed to establish either an actionable breach of
contract or a right to recover for damages incurred as a result of her reliance
upon any promise made by Ms. Neely. The claim is, therefore, dismissed.
Let judgment be entered accordingly.
June 24, 2009
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of