The following papers were read and considered by the Court on these motions:
Defendant’s Notice of Motion to Dismiss with Annexed Exhibits A-C,
Defendant’s Memorandum of Law in Support of Motion to Dismiss,
Claimant’s Affidavit in Opposition with Annexed Exhibit; Defendant’s
Reply Affirmation, Claimant’s Notice of Cross-Motion for leave to file a
late Claim with Annexed Exhibits, Defendant’s Memorandum of Law in
Opposition to Claimant’s Motion to File a Late Claim with Annexed Exhibit
A, the filed Claim and the Supplemental Claim.
Defendant, the State of New York, moves to dismiss the claim in this matter
pursuant to CPLR 3211 for failure to state a cause of action, Court of Claims
Act § 10 for failure to comply with the statute of limitations, mootness
and issue preclusion. In response, claimant, Bradley Davis, an attorney
representing himself, has opposed this motion and also filed a cross-motion
pursuant to CCA § 10(6) for permission to file a late claim.
In the claim filed on October 14, 2008, claimant alleges, inter alia,
that during a telephone conversation on September 10, 2008, defendant wrongfully
conditioned an offer to reimburse claimant’s expenses on a release of his
claims as well as the claims of his spouse, Duke Funderburke. Mr. Funderburke
has a separate action pending in another forum. Claimant also alleges that
defendant’s agents discriminated against him in violation of Executive Law
§§ 296(1)(a) and § 296(6), also referred to as the New York State
Human Rights Law, by refusing to reimburse him for medical expenses he incurred
between November 2004 through May 2007. At that time defendant refused to
recognize same-sex spouses legally married out of state as being entitled to
Defendant contends that the claim should be dismissed for claimant’s
failure to comply with the time requirements proscribed by Court of Claims Act
§10 (3). Defendant also argues that the claim fails to set forth a valid
cause of action. Defendant further contends, inter alia, that the claim
is moot because the challenged policy is no longer in effect and that defendant
offered to reimburse claimant for his expenses prior to the policy change.
Claimant argues that he is and has been willing to settle his claim but that he
will not obtain a release from Mr. Funderburke. Claimant also argues that his
claim is timely because the statutory time requirements of Court of Claims Act
§ 10(4) are applicable to claims alleging violations of the Human Rights
Law. Claimant fails to address defendant’s other grounds for
The underlying facts of this case are essentially not in dispute. Claimant and
Mr. Funderburke were legally married in Ontario, Canada in October 2004. At the
time, Mr. Funderburke was a retired school teacher who was previously employed
by the Uniondale Union Free School District (“School District”).
Subsequent to their marriage, Mr. Funderburke applied for spousal health and
dental insurance from the School District. The Employee Benefits Division of
the Department of Civil Service administers the New York State Health Insurance
Plan (NYSHIP). Sometime in November 2004, the School District denied the
request because at that time NYSHIP did not recognize same sex spouses legally
married out of state as being entitled to spousal benefits. As a result of the
denial, Mr. Funderburke commenced an action in New York State Supreme Court
against the School District and the Department of Civil Service seeking damages,
injunctive relief and a declaration that the benefits were illegally denied.
The Supreme Court granted defendants motions for summary judgment. Mr.
Funderburke appealed the decision. While the appeal was pending, the Department
of Civil Service changed its policy, effective May 1, 2007, to require all
employers within its jurisdiction to provide full spousal benefits to same-sex
couples legally married in another jurisdiction. Claimant was then covered by
Mr. Funderburke’s health insurance policy. The Department of Civil
Service also committed to pay Mr. Funderburke’s out-of-pocket expenses
that he incurred in obtaining coverage for claimant from the date of their
marriage to the date of coverage under the NYSHIP.
In March 2008, the Appellate Division, Second Department, dismissed the appeal
as academic. The Court held that in light of the defendant’s voluntary
change of policy, the rights of the parties would not be directly affected by a
determination of the appeal. The court noted that the Department of Civil
Service committed to the payment of out of pocket expenses incurred by
Funderburke in obtaining health coverage for his spouse from the time of
Funderburke’s application (see Funderburke v New York State Department
of Civil Service, 49 AD3d 809 [2d Dept 2008]).
Subsequent to the decision by the Second Department, there were discussions and
correspondence between claimant, Mr. Funderburke and the Office of the Attorney
General with respect to compensation for out-of-pocket expenses. In a letter
dated September 12, 2008, defendant set forth its understanding that Mr.
Funderburke did not incur any expenses to pay for claimant’s medical
coverage. It was therefore the view of the New York State Department of Civil
Service that the matter in regard to Mr. Funderburke was fully resolved.
Nevertheless, the New York State Department of Civil Service was also committed
to paying the documented expenses claimant incurred as a result of the former
policy. However, no agreement could be reached and no payments were made by
defendant on behalf of the New York State Department of Civil Service to either
Mr. Funderburke or claimant.
Although defendant does not specifically reference Court of Claims Act §
11(b), defendant mentions in its memorandum of law that claimants’
allegations are difficult to comprehend and fail to state a cause of action.
Court of Claims Act § 11(b) requires in pertinent part that “the
claim shall state the time when and place where such claim arose, the nature of
same, [and] the items of damage or injuries claimed to have been
sustained.” These requirements are jurisdictional in nature and must be
strictly complied with in order to properly initiate an action against defendant
(Kolnacki v State of New York, 8 NY3d 277 ). “The Court of
Claims Act does not require [defendant] to ferret out or assemble information
that section 11(b) obligates the claimant to allege” (Lepkowski v State
of New York, 1 NY3d 201, 208 ).
An independent reading of the claim does not provide a reader with a clear
understanding of the alleged wrongs complained of in this action and when they
occurred. Claimant alleges that something took place in a telephone
conversation with an Assistant Attorney General on September 10, 2008 however,
claimant does not specifically state what occurred during that telephone
conversation to form the basis of his cause of action. Claimant then alleges
discrimination against defendant for failing to reimburse him for medical
expenses and provide him with spousal health insurance. Claimant does not
provide a date of the alleged discrimination. It is also unclear as to whether
claimant is alleging that the denial of the health insurance was the claimed
discriminatory act or whether the failure to reimburse claimant was the claimed
discriminatory act. Additionally, claimant fails to allege the protected
classes upon which he is basing his discrimination cause of action. Thus, this
Court must dismiss the claim in this matter due to claimant’s failure to
plead his claim in compliance with Court of Claims Act § 11(b) (Kolnacki
v State of New York, 8 NY3d 277 ; see also Rivera v State of New
York, 52 AD3d 1075 [3d Dept 2008]).
Notwithstanding claimants’ failure to comply with Court of Claims Act
§ 11(b), claimant has failed to set forth a viable cause of action under
the New York State Human Rights Law in his claim. Executive Law §
296(1)(a) provides, in pertinent part, that it shall be an unlawful
discriminatory practice for an employer, because of the age, race, creed, color,
national origin, sexual orientation, military status, sex, disability, genetic
predisposition or carrier status, or marital status of an individual to refuse
to hire, or employ, or bar or discharge from employment such individual or to
discriminate against such individual in compensation or in terms conditions or
privileges of employment. Executive Law § 296(6) provides that it shall be
an unlawful discriminatory practice for any person to aid, abet, incite, compel,
or coerce the doing any of the acts forbidden under this article or attempt to
do so. Although the Human Rights Law provides that any person claiming to be
aggrieved by an unlawful discriminatory practice may pursue an action for
damages, it is well settled that the spouse of a victim of alleged employment
discrimination is not a person aggrieved within the meaning of the Human Rights
Law (see Sone v Tsumura, 222 AD2d 231 [1st Dept 1995]; Giaimo &
Vreeburg v Smith, 192 AD2d 41 [2d Dept 1993]; Mehtani v New York Life
Ins. Co., 145 AD2d 90 [2d Dept 1993]; Rich v Coopervision, Inc., 198
AD2d 860 [4th Dept 1993]; Weinstein v Hospital for Joint Diseases & Med.
Ctr., 53 AD2d 627 [2d Dept 1976]). Claimant is not and was not an employee
of the State or any of its subdivisions and therefore he has no cause of action
arising under §296(1)(a) of the Human Rights Law. Claimant’s claim
pursuant to Executive Law §296(6) also fails to state a cause of action. A
claim under §296(6) imposes liability upon individuals who aid and abet
discriminatory conduct, i.e., actually participate in conduct giving rise
to a discrimination claim (see Mitchell v TAM Equities 27 AD3d 703
[2d Dept 2006]; Tomka v Seiler Corp., 66 F3d 1295, 1317 [2d Cir 1995]).
An aiding and abetting claim against an individual can only survive if claimant
can establish liability against the employer (Forrest v Jewish Guild for the
Blind, 309 AD2d 546,559 [1st Dept 2003]). In the present case claimant sets
forth no allegations that would give rise to an aiding and abetting claim. More
importantly, even if he had, claimant can not maintain a cause of action against
an individual in the Court of Claims (see Court of Claims Act §9).
Therefore, for the foregoing reasons, claimant fails to set forth a cause of
action under the Human Rights Law and the claim must be dismissed.
Similarly, to the extent claimant is seeking injunctive or Article 78 relief,
those remedies are outside the jurisdiction of the Court of Claims and must also
be dismissed (see Court of Claims Act § 9).
Assuming arguendo that any claims remain they would be untimely.
Claimant’s failure to include the date the alleged discrimination took
place makes the Court unable to ascertain when the statute of limitations began
to run and its date of expiration. Under the Court of Claims Act, a claim
accrues when the damages are reasonable ascertainable. (see Local 851
of International Brotherhood of Teamsters, Inc. v State of New York, 36 AD3d
672 [2d Dept 2007] lv denied 8 NY3d 811 ; Augut v State of New
York, 244 AD2d 835 [3d Dept 1997] lv denied 91 NY2d 814 ).
Assuming there was a remaining viable cause of action, it accrued no later than
May 2007 when claimant was included as a spouse for health insurance coverage
and began receiving health insurance benefits because at that time his damages
could be ascertained. There is no record of a notice of intention being served
in this action. The claim in this matter was filed on October 14, 2008.
Defendant argues that Court of Claims Act § 10(3-b) is applicable to
instant claim. Court of Claims Act § 10(3-b) sets forth in pertinent part
that a claim must be filed or a notice of intention served within 90 days after
the accrual of such a claim. Defendant cites to Figueroa v State of New
York, 126 Misc 2d 304 [Ct Cl 1984] in support of its position. This Court
also acknowledges that the Appellate Division, Third Department has held that
§10(3) of the Court of Claims act is applicable to Human Rights Law claims
(see Brown v State of New York, 125 AD2d 750 [3d Dept 1986];
Bhagalia v State of New York, 228 AD2d 882 [3d Dept 1996]).
However, it is well settled that a claim arising under Executive Law §
296, also known as the Human Rights Law, is a statutorily created discrimination
claim and not a tort claim (see Mills v County Monroe, 89 AD2d 776 [4th
Dept 1982], affd 59 NY2d 307 ; Matter of Amorosi v South Colonie
Ind. Cent. School Dist. 9 NY3d 367 ; Lane-Weber v Plainedge
Union Free School Dist., 213 AD2d 515 [2d Dept 1995]; Scopelliti v Town
of New Castle, 210 AD2d 308 [2d Dept 1994)]. These cases dictate that the
applicable time limitations for discrimination claims are found in Court of
Claims Act §10(4) as opposed to Court of Claims Act §10(3-b) (see
Clauberg v State of New York, 19 Misc 3d 942 [Ct Cl 2008]).
However, even applying the longer 180 day filing and service requirements
contained in CCA §10(4), the claim in this matter was not timely filed or
Finally, to the extent that claimant is alleging a cause of action with regard
to failure to reach an agreement on the appropriate amount of compensation, on
or about September 10, 2008, it is axiomatic that the Court of Claims does not
have authority to impose a settlement agreement.
Therefore, for the foregoing reasons, defendant’s motion to dismiss is
Turning to claimant’s cross-motion for permission to file a late claim,
it is well settled that “[t]he Court of Claims is vested with broad
discretion to grant or deny an application for permission to file a late
claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d
Dept 2004]). In determining whether relief to file a late claim should be
granted the Court must take into consideration the factors set forth in Court of
Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State
Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55
NY2d 979 ). The factors are not necessarily exhaustive, nor is the
presence or absence of any particular one controlling (id.). Those
factors are whether the delay in filing the claim was excusable; whether the
defendant had notice of the essential facts constituting the claim; whether the
defendant had an opportunity to investigate; whether the defendant was
substantially prejudiced; whether the claim appears to be meritorious and
whether the claimant has any other available remedy. A proposed claim to be
filed, containing all of the information set forth in CCA § 11, shall
accompany any late claim application.
The next three factors, notice, an opportunity to investigate and prejudice are
interrelated and as such will be considered together. Claimant’s failure
to address any of these factors requires the Court to find them in
defendant’s favor. Likewise, claimant has not addressed the issue of
whether he has an alternative remedy in this matter. Thus, this factor is also
found in defendant’s favor.
The most significant issue to be considered is that of merit. To permit the
filing of a legally deficient claim would be an exercise in futility (Savino
v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to “appear to be meritorious”: (1) it must not
be patently groundless, frivolous, or legally defective, and (2) the court must
find, upon a consideration of the entire record, including the proposed claim
and any affidavits or exhibits, that there is reasonable cause to believe that a
valid cause of action exists...[T]he court need only determine whether to allow
the filing of the claim, leaving the actual merits of the case to be decided in
due course. While this standard clearly places a heavier burden on a claimant
who has filed late than upon one whose claim is timely, it does not, and should
not, require him to definitively establish the merits of his claim, or overcome
all legal objections thereto, before the Court will permit him to file
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1,
11-12 [Ct Cl 1977]).
The proposed claim and the original claim in this matter are identical. Based
upon the foregoing discussion and determination by the Court dismissing the
original claim, the Court finds that claimant has not established, for the
purposes of this motion, that the claim is meritorious.