New York State Court of Claims

New York State Court of Claims

STARON v. THE STATE OF NEW YORK, #2009-016-022, Claim No. None, Motion No. M-75995


Case Information

1 1.The caption has been amended to reflect that the properly named defendant here is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the properly named defendant here is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Raymond Nardo, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 4, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 claim[2], 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 place.
* * * In order to determine this motion, six factors enumerated in the Act must be considered, i.e., whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[3]
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[4]: (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.
* * *
Accordingly, having considered the six factors in view of the parties’ submissions[5], IT IS ORDERED that motion no. M-75995 be granted only with respect to a cause of action for tortious interference with business relations and shall be denied with respect to all other causes of action. IT IS FURTHER ORDERED that within sixty (60) days of the filing of this Decision and Order, claimant shall serve and file his claim in compliance with §§11 and 11-a of the Court of Claims Act; such claim shall be in the form of claim no. 116369, except that all causes of action except for tortious interference with business relations shall be deleted.

June 4, 2009
New York, New York

Judge of the Court of Claims

  1. [2]Pursuant to claimant’s request in his reply papers, the claim which he filed on February 2, 2009, which was assigned claim no. 116369, will be considered his proposed claim for the purposes of this motion.
  2. [3]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
  3. [4]It also included a cause of action for “violat[ion] [of] New York State Whistleblowing laws . . . , “ but claimant withdrew such cause of action in his reply papers.
  4. [5]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibit 1; defendant’s affirmation in opposition; and claimant’s reply affirmation with exhibit 1.