New York State Court of Claims

New York State Court of Claims

KELSO v. THE STATE OF NEW YORK, #2009-041-041, Claim No. None, Motion No. M-77063


Application to file late claim alleging age discrimination is granted as allegations provide cause to believe a valid cause of action may exist and the defendant has not been substantially prejudiced by delay in prosecuting the claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
By: Michael Jacobs, Esq. and Andrew D. Stammel, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Paul F. Cagino, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 22, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 [1] [a]).

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 [4] (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 and rules.”

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 [2] (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 [1984]). 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 [2005] (discriminatory charge to be filed with EEOC within 300 days); DeKenipp, supra; see 29 USC §§ 626 [d] [1] [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 discriminatory action.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”
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 [1982]).

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 [1991]).

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 [2004]).

“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 of Claims.

October 22, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion, filed August 11, 2009;
  2. Affidavit of Timothy S. Kelso, sworn to August 10, 2009, and annexed exhibit;
  3. Affirmation of Andrew Stammel, dated August 10, 2009, and annexed exhibit;
  4. Affirmation of Paul F. Cagino, dated September 11, 2009, and annexed exhibit.