Frank Staron moves for permission to file a late claim pursuant to §10.6
of the Court of Claims Act (the “Act”). In his proposed
, Mr. Staron alleges as follows. He
began working for RBSD Architects on January 2, 2007. On December 20, 2007,
RBSD entered into a contract with the State of New York to perform renovations
at the Manhattan Psychiatric Center on Wards Island, and claimant was assigned
to work as the project manager. On February 4, 2008, claimant was advised by
Dr. Mahmoud F. Agha, the principal at RBSD, that his employment was being
terminated, and his last day of work was February 15, 2008.
Staron also alleges that he was notified by Behrooz Fatehi, a senior associate
at RBSD, that the “real reason” he had been terminated was because
he had previously provided testimony against the State in an unrelated lawsuit
in which the State was a defendant. Specifically, claimant alleges that Mr.
Fatehi told him that Leonardo Chao, a regional supervisor of the State Office of
General Services, had called Larry Fink, another senior associate at RBSD,
“about Staron’s former testimony . . . and directed that Staron be
removed . . . .” Claimant maintains that Mr. Fink advised Dr. Agha of the
conversation and that his termination was the result. Staron also states that
he confirmed with Fink that the conversation between Fink and Chao had taken
The first three factors – whether defendant had notice of the essential
facts, had an opportunity to investigate or would be prejudiced by the granting
of this motion are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342 (Ct Cl 1998). Defendant has not
addressed these factors. If, in fact, Mr. Chao directed claimant’s
termination, then notice is implicated. In addition, the matter can presumably
be investigated and no prejudice has been alleged.
As to an alternate remedy, Staron may have a cause of action against the
individual or individuals responsible for his termination. With regard to
excuse, claimant alleges that two weeks after he was terminated, he fell and
suffered injuries which caused him to be disabled for 4 to 5 months. He also
states that he was hospitalized for gall bladder problems in the same time
period. Without a physician’s affidavit or hospital records, such
incapacity does not serve as an excuse for the purposes of the Act. See
Goldstein v State of New York, 75 AD2d 613 (2d Dept 1980).
As to whether the claim appears meritorious, Staron’s proposed claim
includes four causes of action
: (i) tortious
interference with an employment contract; (ii) tortious interference with
business relations; (ii) violation of federal civil rights statute 42 U.S.C.
§1983; and (iv) violation of the New York State Constitution.
Tortious Interference with an Employment Contract
An employee who lacks an employment agreement with a definite term, and whose
employment is terminable at any time by either party, is an at-will employee who
has no cause of action for tortious interference with contract. See, e.g.,
Lobel v Maimonides Medical Center, 39 AD3d 275 (1st Dept 2007); Baker
v Guardian Life Ins. Co. of America,, 12 AD3d 285 (1st Dept 2004);
Bainton v Baran, 287 AD2d 317 (1st Dept 2001).
Defendant pointed out in its opposition papers that claimant’s moving
papers did not reflect whether he had a contract with RBSD or was an at-will
employee. Claimant’s response, in his reply papers, was essentially to
state that it was sufficient for him to merely make reference to having a
contract in the proposed claim annexed to his moving papers, which he verified.
He has submitted no copy of an employment agreement, or even provided detail of
any such contract. Moreover, he fails to state that he was to be employed for a
definitive length of time. Under the circumstances, claimant has failed to
demonstrate a meritorious cause of action for tortious interference with
contract per the standard set forth in Matter of Santana v New York State
Thruway Authority, 92 Misc 2d 1, 11 (Ct Cl 1977): (i) the claim “must
not be patently groundless, frivolous, or legally defective” and (ii) upon
consideration of the entire record, including the proposed claim and any
exhibits or affidavits, “there is reasonable cause to believe that a valid
cause of action exists.”
Tortious Interference with Business Relations
An at-will employee may, however, have a cause of action for tortious
interference with business relations if he can demonstrate that
defendant’s conduct constituted a crime or an independent tort, or where
defendant engaged in conduct for the sole purpose of inflicting intentional harm
on him. See, e.g., Lawrence v Union of Orthodox Jewish Congregations of
America, 32 AD3d 304 (1st Dept 2006); Lobel and Baker, supra.
With regard to this cause of action, I find that claimant has demonstrated
merit per Matter of Santana.
Violation of 42 U.S.C. §1983
The Court lacks jurisdiction over this cause of action; a §1983 claim may
not be pursued against the State of New York in the Court of Claims. See
Brown v State of New York, 89 NY2d 172 (1996).
Violation of the New York State Constitution
As to a State constitutional cause of action under Brown, supra,
in Martinez v City of Schenectady, 97 NY2d 78 (2001), the Court of
Appeals described such cause of action as a narrow remedy addressing two
interests: “the private interest that citizens harmed by constitutional
violations have an avenue of redress, and the public interest that future
violations be deterred.” The facts of this case do not fall within the
protection of Brown.