New York State Court of Claims

New York State Court of Claims

FRIEDMAN v. THE STATE OF NEW YORK, #2009-044-507, Claim No. 114825, Motion No. M-75472


Court granted State’s motion to dismiss claim as untimely; claimant not entitled to benefit of CPLR 205(a) where first claim was untimely filed. Continuing violation doctrine did not toll limitations period.

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:
LAW OFFICE OF RONALD R. BENJAMINBY: Ronald R. Benjamin, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


On February 20, 2007, claimant filed Claim No. 113343 (the First Claim) and served it on defendant State of New York (defendant).[1] In the First Claim, claimant alleged that she was the victim of gender discrimination in her position as Assistant Professor in the Psychology Department’s Clinical Training Program (the Program) at the State University of New York at Binghamton (Binghamton University). The Court, having reviewed the claim and having determined that it lacked a total sum of monetary damages, sua sponte dismissed it as jurisdictionally defective based upon Kolnacki v State of New York (8 NY3d 277 [2007]) (Friedman v State of New York, Ct Cl, Aug. 23, 2007, Schaewe, J., Claim No. 113343, Motion No. None [UID # 2007-044-563]). Claimant thereafter moved for permission to file and serve a late claim (Motion No. M-73336). The Court found that claimant’s failure to set forth allegations from which an accrual date could be determined both prevented the Court from determining whether the motion was timely, and rendered the proposed claim jurisdictionally defective (Friedman v State of New York, Ct Cl, Nov. 1, 2007, Schaewe, J., Claim No. None, Motion No. M-73336). Claimant’s motion for permission to file a late claim was therefore denied (id.). Claimant thereafter filed Claim No. 114825 (the Second Claim) on February 13, 2008, and served defendant on February 15, 2008 (Affirmation of AAG Carol A. Cocchiola, in Support of Motion to Dismiss, ¶ 5).[2] Defendant answered and asserted several affirmative defenses. Defendant now moves to dismiss the Second Claim. Claimant opposes the motion.

Defendant argues that based upon the allegations set forth in the Second Claim, the latest date on which claimant’s cause of action could have accrued was March 16, 2005, and because claimant failed to comply with Court of Claims Act § 10, the First Claim was not timely filed or served. Defendant contends that because the First Claim was untimely, claimant is not entitled to the benefit of CPLR 205 (a), and the Second Claim is therefore also untimely.

Conversely, claimant asserts that this claim is timely because she has sufficiently alleged a continuing course of conduct based upon the continuing daily stress on her caused by the circulation of a certain letter on or about March 16, 2005. Claimant further argues that she timely filed a complaint with the State Division of Human Rights (the Division) on July 29, 2005 which was dismissed by the Division for administrative convenience on May 25, 2006,[3] and as a result, the First Claim was timely filed within one year thereafter.

The Court must initially determine when claimant’s cause of action accrued, which necessarily requires a determination of whether the continuing violation doctrine applies to the allegations in this case. In the Second Claim, claimant alleges that she has been employed as an Associate Professor at Binghamton University since 1988, and that she was the only tenured female faculty member in the Program. Claimant states that she has been impeded in advancing in her career and profession for several reasons related to her gender, including the assignment of laboratory space, which claimant alleges was inconsistent with her seniority in the Department and was further inadequate to perform her research projects. Claimant also alleges that while she was Director of Clinical Training from 2000 through 2003, she was denied authority that the previous male directors enjoyed with respect to hiring decisions. Claimant further alleges that she was denied adequate secretarial assistance which, in addition to the inadequate laboratory space, prevented her from completing an American Psychological Association (APA) Self-Study before the May 2003 deadline. Having not received the secretarial and faculty support necessary to complete the Self-Study, claimant states that she resigned as Director of Clinical Training in June 2003.

Shortly after claimant filed an internal gender grievance in January 2004, the Department Chair allegedly informed her that “it would be bad for her and her career” if she disclosed the grievance to the APA during an upcoming site visit. Claimant further states that Dr. Donovick, her replacement as Director of Clinical Training, sought to have her participate in the annual APA report during July 2004, even though faculty members were not paid during the summer months. Claimant asserts that one of her doctoral students also sought to have her participate in a committee meeting on dissertations during the summer when she was not being paid. Claimant alleges that in August 2004, Dr. Donovick interfered with her supervision of a graduate student, and sought to have that student make a complaint against claimant.

Claimant alleges that on or about March 16, 2005, faculty in the Psychology Department “sought to enlist the assistance of and encourage students in the department to discredit her and to circulate a ‘To Whom It May Concern’ letter [the Letter] claiming ‘to outline difficulties [the graduate students] faced . . . under the mentorship of [claimant]’ and making allegations criticizing claimant in a public manner to which male faculty had not been subjected” (the Second Claim, ¶ 30). Claimant further alleges that publication of the Letter “placed tremendous emotional stress on [her]” as she was “subjected to false and malicious allegations,” (the Second Claim, ¶ 31) and that “pressure continues on a daily basis, [but she] nonetheless continues to satisfactorily fulfill her employment responsibilities at the University” (the Second Claim, ¶ 32).

As defendant correctly notes, the last date contained in the Second Claim is that of March 16, 2005.[4] The continuing violation doctrine is available to toll the limitations period of Court of Claims Act § 10 when it is “predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” (Selkirk v State of New York, 249 AD2d 818, 819 [1998]; see also, Bullard v State of New York, 307 AD2d 676 [2003]; Clauberg v State of New York, 19 Misc 3d 942 [2008]). Claimant adequately alleges that publication of the Letter in March 2005 may constitute wrongful conduct. However, the alleged continuing daily emotional stress and pressure placed upon her by that letter to satisfy her teaching obligations, in light of the purportedly false and malicious statements contained therein, clearly constitute nothing more than continuing negative effects of the earlier publication, rather than additional wrongful actions (see Selkirk v State of New York, supra). The claim simply does not contain factual allegations sufficient for the Court to infer that the discriminatory conduct alleged therein satisfies the continuing violation doctrine. Claimant’s cause of action must be deemed to have accrued, at the latest, on March 16, 2005.

Notwithstanding that claimant may have timely filed a complaint with the Division on or about July 29, 2005,[5] once that proceeding was dismissed for administrative convenience and claimant chose to pursue redress in the court system, claimant was subject to “the statute of limitations in effect in such court at the time the complaint was initially filed with the [D]ivision” (Executive Law § 297 [9]). Claimant was therefore required to file and serve a claim, or to serve a notice of intention to file a claim, within the appropriate limitations period set forth in Court of Claims Act § 10 (see Brown v State of New York, 125 AD2d 750 [1986], lv dismissed 70 NY2d 747 [1987]; Syrkin v State of New York, Ct Cl, Apr. 5, 2006, Scuccimarra, J., Claim No. 110738, Motion No. M-71122, Cross Motion No. CM-71179 [UID # 2006-030-524]).[6]

As set forth previously in this Decision and Order, the cause of action accrued on March 16, 2005. Even though the limitations period of Court of Claims Act § 10 was tolled during the pendency of claimant’s administrative proceeding (see e.g. Sciss v Metal Polishers Union Local 8A, 149 AD2d 318 [1989]), that proceeding was dismissed on June 12, 2006.[7] As a notice of intention was not served in this matter, the First Claim filed and served on February 20, 2007 was clearly untimely. Because the Second Claim would not have been timely if it had been filed and served on February 20, 2007, claimant is not entitled to the benefit of CPLR 205 (a) (cf. Signature Health Ctr., LLC v State of New York, supra; Morris v State of New York, 27 AD3d 282 [2006]).[8] Accordingly, defendant’s motion is granted and Claim No. 114825 is hereby dismissed.

January 23, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on September 2, 2008; Affirmation of Carol A. Cocchiola, AAG, dated August 29, 2008.

2) Affirmation of Ronald R. Benjamin, Esq., dated September 5, 2008, and attached exhibits.

3) Correspondence from the Court to the parties dated December 15, 2008.

4) Correspondence from Carol A. Cocchiola, AAG, to the Court dated December 18, 2008, and attachment.

5) Correspondence from Ronald R. Benjamin, Esq., to the Court dated December 18, 2008, and attachment.

Filed papers: Claim filed on February 13, 2008; Verified Answer filed on April 30, 2008.

[1]. The First Claim was apparently served on February 20, 2007 as well (Affirmation of Carol A. Cocchiola, Assistant Attorney General [AAG], dated August 29, 2008, in Support of Motion to Dismiss, ¶ 3).
[2]. Claimant chose to file the Second Claim rather than seeking leave a second time to file and serve a late claim, apparently relying on the Appellate Division’s holding that CPLR 205 (a) is applicable in the Court of Claims (see Signature Health Ctr., LLC v State of New York, 42 AD3d 678 [2007]).
[3]. The Division actually dismissed the administrative proceeding on June 12, 2006 (see n 7, infra).
[4]. While the claim contains additional allegations of allegedly discriminatory conduct, such as claimant being ordered by another professor to physically leave the building which housed her office, neither the First Claim nor the Second Claim indicates whether that conduct took place before publication of the March 2005 letter, or after that date.
[5]. Executive Law § 297 (5) authorizes a claimant to file a complaint with the Division within one year after the allegedly unlawful discriminatory practice took place.
[6]. Under the circumstance present in this case, it is not necessary that the Court address whether the 90-day limitations period of Court of Claims Act § 10 (3) is applicable in employment discrimination cases, as held by the Appellate Division, Third Department, in Bhagalia v State of New York (228 AD2d 882 [1996]) and Brown v State of New York (supra), as opposed to the 6-month limitations period of Court of Claims Act § 10 (4), as suggested by Clauberg v State of New York, supra).
[7]. Defendant, in its opposition to Motion No. M-73336, submitted a copy of a letter dated May 25, 2006 which indicated that the Division was “contemplating dismissing the . . . complaint for administrative convenience” (emphasis supplied) (Friedman v State of New York, Ct Cl, Nov, 1, 2007, Schaewe, J., Claim No. None, Motion No. M-73336, supra) to allow claimant to pursue a Federal Court action. The Court, troubled by the lack of any documentary evidence conclusively establishing the date of any such dismissal, or even whether the proceeding was ever actually dismissed, requested that counsel for claimant provide a copy of the dismissal order or explain its absence. In response, counsel for claimant merely submitted a copy of the Division’s letter dated May 25, 2006. However, AAG Cocchiola obtained and submitted a copy of the Division’s Determination and Order of Dismissal for Administrative Convenience dated June 12, 2006.
[8]. CPLR 205 (a) provides that “[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”