Claimant moves for permission to file a late claim pursuant to Court of Claims
Act § 10 (6). Claimant was employed by the State of New York from 1978
until retiring in July 2009. Claimant alleges that he suffered a workplace
demotion in August 2008, and a corresponding reduction in salary and retirement
benefits, as a result of an alleged “violation of claimant’s
contract” and “age discrimination.” Although claimant
specifically mentions only the federal Age Discrimination in Employment Act
(ADEA) in asserting a cause of action for age discrimination, the Court will
also consider whether a potentially meritorious claim of age discrimination
exists under the New York State Human Rights Law (Executive Law § 296 
The claim accrued in August 2008 and is untimely whether it is considered a
tort claim pursuant to Court of Claims §§ 10 (3) or 10 (3-a), or a
statutory cause of action subject to a six-month filing period pursuant to Court
of Claims Act § 10  (Clauberg v State of New York, 19 Misc 3d 942
[Ct Cl 2008]).
Court of Claims Act § 10 (6) provides that the Court, upon application and
in its discretion, may permit the late filing and service of a claim “at
any time before an action asserting a like claim against a citizen of the state
would be barred under the provisions of article two of the civil practice law
Claimant’s cause of action sounding in breach of contract is governed by
a six-year statute of limitation (CPLR 213). An action to recover damages
pursuant to the New York State Human Rights Law for age discrimination is
subject to the three-year statute of limitations contained in CPLR 214 
(DeKenipp v State of New York, UID# 2009-015-114, Claim No. 115399,
Motion Nos. M-75313 and CM-75624 [Collins, J., Ct Cl 2009]); see
Koerner v State of New York, 62 NY2d 442, 446 ). Neither of those
causes of action are time-barred.
The ADEA cause of action, however, is time-barred: “A [claimant] seeking
to recover under the ADEA must file a discrimination charge with a state agency
within 300 days of the occurrence of the allegedly unlawful employment
practice” (Kassner v 2nd Avenue Delicatessen Inc., 496 F3d 229, 237
[2d Cir 2007]; Brannigan v Board of Educ. of Levittown Union Free School
Dist., 18 AD3d 787 [2d Dept 2005], lv denied 6 NY3d 701 
(discriminatory charge to be filed with EEOC within 300 days); DeKenipp,
supra; see 29 USC §§ 626 [d]  [B], 633 [b]). Claimant has failed to
allege or prove that a discrimination charge was filed with either an
appropriate state agency or the EEOC within 300 days of the allegedly
In determining the application, Court of Claims Act § 10 (6) provides
In reviewing a late claim application, “the Court of Claims is required
to consider, among other factors, those enumerated in Court of Claims Act §
10 (6), no one factor being controlling” (Matter of Donaldson v State
of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy
v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact,
“[n]othing in the statute makes the presence or absence of any one factor
determinative” (Bay Terrace Coop. Section IV, Inc. v New York State
Employees’ Retirement System Policemen's and Firemen's Retirement
System, 55 NY2d 979, 981 ).
Further, “it is well settled that the Court of Claims’ broad
discretion in this area should be disturbed only in the face of clear
abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept
1991], lv denied 78 NY2d 852 ).
Claimant fails to offer a reasonable excuse for the delay in filing the claim.
Claimant’s alleged reliance upon the “advice and comments of his
superiors,” to the effect that they would correct his “improper loss
of salary,” does not constitute a reasonable excuse for his failure to
timely file the claim.
The Court finds that the defendant’s access to claimant’s
employment records and its ability to interview claimant’s supervisors and
co-employees, together with the brief period of delay in asserting the claim,
provide defendant a reasonable opportunity to investigate the claim and to avoid
prejudice in defending the claim.
Claimant has no available alternative remedy.
Section 10 (6) requires that the proposed claim not be “patently
groundless, frivolous or legally defective, and [that] upon consideration of the
entire record, there is cause to believe that a valid cause of action
exists” (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl
2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl
2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997];
Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl
1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]),
the court noted that a proposed claim offered in a section 10 (6) application
need only have “the appearance of merit.”
Defendant has not offered an affidavit disputing the factual allegations of the
proposed claim and the allegations are deemed true for purposes of this
application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept
1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
However, neither the claimant’s affidavit nor the proposed claim provide
any factual allegations supporting the existence of an oral or written
employment contract between claimant and defendant, much less the breach of such
a contract, and the application is denied with respect to the first cause of
action alleging breach of contract.
To state a claim for age discrimination, claimant must allege facts showing
that: (1) he is a member of the class protected by the statute; (2) he was
qualified for the position he sought; (3) he suffered an adverse employment
action; and (4) the adverse action occurred under circumstances giving rise to
an inference of unlawful discrimination (Forrest v Jewish Guild for the
Blind, 3 NY3d 295, 305 ).
“Claimant only has to establish the appearance of merit and need not
prove a prima facie case at this stage of the proceedings”
(Jackson v State of New York, #2002-009-007, Motion No. M-64481 [Midey,
J., Ct Cl, February 19, 2002]). Further, claimant’s “burden of
establishing a prima facie case [of age discrimination] is de
minimis” (Abdu-Brisson v Delta Air Lines, Inc., 239 F3d 456,
467 [2d Cir 2001]).
The allegations of the second cause of action in the proposed claim, minimally
pled as they are, together with the attached affidavit of claimant and
affirmation of his attorney, demonstrate at least the “appearance of
merit” of an age discrimination claim pursuant to the New York State Human
Rights Law (see Dippolito v State of New York, 192 Misc 2d 395,
397 [Ct Cl 2002], which held that in determining a late claim application
“the court may examine the proposed causes of action, as well as all
submitted papers and exhibits”).
Based upon a balancing of the factors set forth in section 10 (6), the Court
grants the motion and claimant is directed to file and serve his claim in
compliance with §§ 11 and 11-a of the Court of Claims Act within sixty
(60) days of the filing of this decision and order with the Clerk of the Court