The following papers were read and considered by the Court on this motion:
Defendant’s Notice of Motion, Defendant’s Memorandum of Law in
Support with annexed documents, Claimant’s Memorandum of Law in
Opposition, Defendant’s Reply Memorandum and the filed Verified Claim.
Defendant, the State of New York, has moved to dismiss the claim in this matter
which was filed on March 31, 2008 and assigned claim number 115047 by the Clerk
of the Court of Claims.
At the outset, the Court notes that the original caption in the claim lists
“The State of New York; The State University of New York at Stony Brook;
Stony Brook University; Stony Brook University School of Medicine; Stony Brook
University Medical Center; SHIRLEY STRUM KENNY, Ph.D., individually and in her
official capacity as President of the State University of New York at Stony
Brook; RICHARD FINE, M.D., individually and in his official capacity as Dean of
the School of Medicine at SUNY Stony Brook; and WAYNE WALTZER, M.D.,
individually and in his official capacity as Chair of the Department of Urology
at the State University of New York at Stony Brook” as defendants in this
matter. However, the Court of Claims is a court of limited jurisdiction wherein
claims primarily seeking monetary damages against the State of New York are
brought (see Court of Claims Act § 9). It is well settled that the State
of New York is the real party in interest for claims against SUNY (Colombo v
Schwartz, 15 AD3d 522 [2d Dept 2005]; Graham v Stillman, 100 AD2d 893
[2d Dept 1984]). It is equally clear that “the State [of New York] is the
real party in interest where an action against a State officer is for conduct
undertaken in an official capacity and in the exercise of an official
governmental function” (Woodward v State of New York, 23 AD3d 852,
856 [3d Dept 2005]). The Court of Claims does not have jurisdiction over the
claims against Shirley Strum Kenny, individually, Richard Fine, individually,
and Wayne Waltzer, individually (see Court of Claims Act § 9). Claimant
also consents to the dismissal of all claims against the individual defendants.
Thus, the Court hereby dismisses the claims against Shirley Strum Kenny,
individually, Richard Fine, individually, and Wayne Waltzer, individually.
Accordingly, the Court amends the caption to reflect the State of New York as
the only properly named defendant in this matter.
Claimant states in his claim that on April 4, 2007, he was notified that his
faculty appointment as Clinical Assistant Professor in the Department of Urology
in the School of Medicine at the Stony Brook University Medical Center would not
be renewed. Claimant alleges that the notification of non-renewal followed his
raising concerns about patients at SUNY; his objecting to activities, policies
and practices of SUNY generally believed to constitute improper quality of
patient care and violations of law, rule and regulation relating to patient
care, insurance, billing and other matters; and his complaining of harassment,
discrimination and retaliatory acts taken against him.
Claimant alleges that he received an appointment effective August 1, 2002 to
the position of Assistant Professor in the SUNY Department of Urology in the
School of Medicine of the Health Sciences Center at Stony Brook. After his
appointment claimant received the additional titles of Director of Laparoscopic
Urology, Laparoscopic Oncology and Laparoscopic Female Pelvic Reconstruction
from the SUNY Department of Urology.
During his recruitment claimant was allegedly told by Dr. Wayne Waltzer, Chair
of the SUNY Urology Department that he would initially receive a standard
contract but would thereafter be recommended for a promotion and an increase in
salary. Dr. Waltzer further represented to claimant that he would be
“fast tracked” and recommended to a tenure-track position as soon as
he was able to demonstrate his surgical abilities. Dr. Waltzer also told
claimant at the time of his hiring that claimant would be furnished with
sufficient non-clinical time to pursue research activities and referrals within
Claimant states that during his time at SUNY he raised the standard of patient
care at SUNY.
Claimant contends that he demonstrated his surgical abilities and performed his
responsibilities at SUNY in an exemplary manner. Claimant states that despite
his exemplary performance he was never promoted and only once received a salary
increase. He also contends that SUNY hired another physician in the Department
of Urology who was younger than claimant, non-Asian, non-Muslim and who was
treated more favorably than claimant in terms of pay and promotional
Claimant asserts that he was forced to take an unpaid leave to pursue
educational and research pursuits while the non-Asian, non-Muslim physician was
offered a paid leave to pursue his MBA.
Claimant alleges that he was inappropriately assigned to the urology resident
clinic for three years which was more time than any other attending in the
Department. Claimant was also assigned to the VA hospital for which he received
no financial reimbursement. Claimant stated that his colleagues’
accomplishments were promoted while his accomplishments were not.
Claimant contends that he was denied the opportunity to perform certain
surgeries and to enter the Cancer Center. Claimant asserts that Dr. Waltzer
sanctioned and encouraged the disruption of claimant’s surgeries by other
individuals while claimant was operating and his patients were under
Dr. Waltzer allegedly made explicit reference to claimant’s race and
religion in justifying his unfair treatment of claimant.
Claimant protested and submitted oral and written complaints about his
discriminatory treatment as well as other improper acts on the part of
defendant’s employees. On January 20, 2005, claimant wrote to Dr. Waltzer
protesting the discrepancy in his salary compared to non-Asian and non-Muslim
employees in the Department. On September 12, 2005, claimant protested Dr.
Waltzer’s unfair treatment and was told an investigation into the matter
would be undertaken by the Dean of the Medical School. On September 16, 2005,
claimant was told that materials would be submitted for claimant’s
consideration for a promotion to an appropriate position however these papers
were never submitted. On October 1, 2005, claimant sent an e-mail complaining
of this omission.
On June 15, 2006, August 3, 2006, November 9, 2006, January 9, 2007 and
February 10, 2007, claimant wrote letters to Shirley Strum Kenny protesting the
acts and practices of Dr. Waltzer as well as his inappropriate billing
Claimant also alleges that equipment he was awarded pursuant to a grant was
removed from the laboratory by Dr. Waltzer and relocated to the operating room
so that claimant could no longer use it to pursue his research.
Claimant states that he was not permitted to perform work at other hospitals
while non-Asian and non-Muslim Department members were allowed.
On or about March 30, 2007, Dr. Waltzer submitted an unfavorable performance
evaluation of claimant which allegedly included false allegations. Dr. Waltzer
also recommended that claimant’s employment not be renewed. On April 4,
2007 claimant received a letter of non-renewal of his appointment.
On April 13, 2007 claimant filed a claim with the Equal Employment Opportunity
Commission (EEOC) in which he complained of discriminatory and retaliatory acts
On April 19, 2007, claimant disputed Dr. Waltzer’s negative assessment
contained in his performance review. Claimant also protested the discriminatory
treatment, harassment and retaliation he allegedly suffered.
Claimant alleges that the harassment, discrimination and retaliation have
increased since he filed his complaint with the EEOC.
Claimant alleges, inter alia, that defendant did not conduct an
appropriate or timely investigation of claimant’s complaints.
Claimant also alleges violations of Title VII of the Civil Rights Act,
violations of the New York State Human Rights Law, violations of 42 USC §
1981, violations of 29 USC § 621 et seq., violations of the
Fourteenth Amendment of the United States Constitution, violations of the New
York State Constitution, violations of 42 USC § 1983, violations of the
First Amendment of the United States Constitution, breach of contract and
Claimant, is seeking inter alia declaratory judgment, injunctive relief,
compensatory damages, punitive damages and attorney’s fees.
In its preliminary statement defendant states that it is seeking dismissal of
certain portions of the claimant’s claim in this matter, however, in the
body of the motion defendant raises additional grounds for dismissal. Claimant
has responded to all the grounds raised by defendant in its memorandum of law in
support its motion to dismiss. Thus, since there was no prejudice to claimant
by defendant’s inconsistent paperwork the Court also addressed those
additional arguments. However, the Court did not consider the issues improperly
raised by defendant for the first time in its reply papers (see Adler v City
of New York, 52 AD3d 549 [2d Dept 2008]; Pinkston v Weiss, 238 AD2d
393 [2d Dept 1997]).
On a motion to dismiss pursuant to CPLR 3211, the court is required to
“accept the facts as alleged in the [claim] as true, accord [claimant] the
benefit of every possible favorable inference, and determine only whether the
facts as alleged fit within any cognizable legal theory” (Leon v
Martinez, 84 NY2d 83, 87-88 ). The review entails “whether the
proponent of the pleading has a cause of action, not whether he has stated
one” (id. at 88).
In regard to claimant’s claims based on violations of 42 USC § 1981
and violations of 42 USC § 1983, it is well settled that the State is not a
“person” within the meaning of those sections and cannot be liable
in actions based on those sections (Will v Michigan Dept. of State
Police, 491 US 58 , Jett v Dallas Ind. School Dist., 491 US 701
; Brown v State of New York, 89 NY2d 172 ). Thus,
claimant’s claims asserting violations of 42 USC § 1981 and 42 USC
§ 1983 as well as the claims asserting violations of the underlying federal
constitutional provisions are dismissed.
To the extent claimant is asserting claims based on violations of the New York
State Constitution they must also be dismissed. The Court should not entertain
such a claim when an adequate alternative remedy is available to claimant
(Martinez v City of Schenectady, 97 NY2d 78 ). Claimant has
numerous alternative remedies available to him arising out of his claim. Thus,
the Court hereby dismisses claimant’s claims based on violations of the
New York State Constitution.
Defendant argues that claimant has failed to state a cause of action for age
discrimination under §296(1)(a) of the Executive Law. Defendant alleges
that although claimant states that he is 51 years of age he does not make a
single allegation of discrimination related to his age.
In order to set forth a prima facie case of age discrimination under the
Human Rights Law (HRL), claimant must demonstrate (1) that he is a member of a
protected class; (2) that he was qualified for the position; (3) an adverse
employment action and (4) that the adverse employment action occurred under
circumstances giving rise to an inference of age discrimination (see
Ferrante v American Lung Assn., 90 NY2d 623 ).
A review of the filed claim reveals that claimant alleges that defendant hired
another physician who was younger, less qualified and treated more favorably
than claimant with regard to the terms and conditions of his employment (see
¶¶ 39, 40 and 41). Claimant has alleged that he is fifty-one years
old and qualified for the position. He has also alleged adverse employment
actions such as failure to promote, unequal compensation, and that a younger,
less qualified individual was given promotional opportunities and higher
Therefore, the court finds that claimant has stated a claim for age
discrimination under the Human Rights Law and the Age Discrimination in
Employment Act (ADEA) (29 USC § 626 [d]). As previously discussed the
court did not consider defendant’s arguments with respect to dismissing
claimant’s ADEA claim as they were improperly first raised in
Defendant’s Reply Memorandum (see Adler v City of New York, 52 AD3d
549 [2d Dept 2008]; Pinkston v Weiss, 238 AD2d 393 [2d Dept 1997]).
Defendant also argues that claimant has failed to state a cause of action with
regard to his claims of retaliation, under both Title VII and the state law. In
order to establish a prima facie case of retaliation under Title VII, a
claimant “must show  participation in a protected activity known to the
defendant;  an employment action disadvantaging the [claimant]; and  a
causal connection between the protected activity and the adverse employment
action.” (Feingold v New York, 366 F3d 138, 156 [2d Cir 2004]).
Under state law, to establish a prima facie case of retaliation, claimant
must show (1) he has engaged in activity protected by Executive Law § 296,
(2) the employer was aware that he participated in the protected activity, (3)
he suffered from a disadvantageous employment action based upon his activity,
and (4) there is a causal connection between the protected activity and the
adverse action taken by the employer (Pace v Ogden Servs. Corp., 257 AD2d
101 [3d Dept 1999]). The same standards are used for analyzing federal
and state law claims (see Ferrante v American Lung Assn., 90 NY2d 623
The anti-retaliation “provision covers...employer actions that would have
been materially adverse to a reasonable employee...that means that the
employer’s actions must be harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of
discrimination” (Burlington Northern & Santa Fe Railway Co. v
White, 548 US 53, 57 ).
Defendant asserts that claimant cannot demonstrate that he suffered an adverse
employment action. Defendant argues that claimant’s allegations of
adverse treatment pre-date his complaints so that they cannot form the basis of
a retaliation claim. Defendant concedes that the receipt of a poor performance
evaluation on March 30, 2007 can be an adverse employment action but that
disruption of surgeries, withholding surgical instruments during surgery and
knowing falsification of staff credentials cannot be adverse actions.
Despite defendant’s assertions, the claim is replete with allegations of
adverse employment actions. There is an entire section of the claim that sets
forth the alleged adverse actions and the causal connection between them. A
review of the claim establishes that claimant made complaints about the
discriminatory treatment he received to agents of the defendant on various
occasions from January 20, 2005 through January 9, 2007. He also filed a charge
on April 13, 2007 with the EEOC complaining of discriminatory and retaliatory
acts. Claimant has alleged a variety of adverse employment actions including
but not limited to: failure to promote, unfavorable performance evaluation,
non-renewal of his appointment, disproportionate assignments to the clinic and
VA hospital, no unscheduled time off to pursue research, the removal of awarded
equipment, failure to acknowledge claimant at conferences, disruption of
surgeries, exclusion from professional activities and repeated harassment that
occurred during that time period. Claimant also alleged that after he filed his
complaint with the EEOC in April 2007, the harassment and discriminatory
treatment he was suffering from increased. Claimant provided additional adverse
employment actions, such as, the booking of his operating room in order to
inhibit his ability to conduct surgeries and the reduction of help in the
clinic. Examples of materially adverse action can include a less distinguished
title, a material loss of benefits, significantly diminished material
responsibilities or other indications unique to a particular situation
(Feingold v New York, 366 F3d 138, 152 [2d Cir 2004]). “[T]o be
materially adverse a change in working conditions must be more disruptive than a
mere inconvenience or an alteration of job responsibilities” (Kessler v
Westchester County Dept. of Social Services, 461 F3d 199, 207 [2d Cir
2006]). Adverse actions also include negative evaluations and undesirable duty
assignments (Pugliese v Long Island Railroad Company 2006 WL 2689600 [ED
NY 2006]). Consequently, the Court finds that claimant has sufficiently stated
that he was subject to adverse employment actions.
Defendant argues that the complaint made by claimant in August 2006 is too
remote in time to his receiving a poor evaluation in March 2007 to form a causal
connection. Defendant fails to take into consideration the subsequent
complaints made in November 2006, January 2007 and February 2007 as well as
other alleged acts of retaliation, to wit, the filing of the charge with the
EEOC in April 2007 and the continued and increased harassment that occurred as a
result of the filing of that charge. Additionally, there is no bright rule for
when an alleged retaliatory action is too far in time from the exercise of a
federal right to be causally connected (Pierre v New York State Dept. of
Correctional Services, 2009 WL 1583475 [SD NY] citing Gorman-Bakos v
Cornell Co-op Extension of Schenectady County, 252 F3d 545 [2d Cir 2001]).
The parties should be well aware of the holding in Deshpande v
Medisys Health Network, Inc., 2008 WL 2004160 [ED NY 2008] as it was cited
by United States District Court Judge Arthur D. Spatt in his decision dated
February 6, 2009 in a related federal court action (Rehman v State University
of New York at Stony Brook, 596 F Supp 2d 643 [ED NY 2009]). There, the
court found that a party would “have [an] opportunity through discovery to
produce direct evidence of a causal connection or to argue that, under the
circumstances of this case, five months is temporally close enough to support an
inference of causation” (Deshpande v Medisys Health Network, Inc.,
2008 WL2004160 at 6 [ED NY 2008]). Similarly, this Court finds that
claimant’s allegations support an inference of causation sufficient to
defeat a motion to dismiss.
Therefore, based upon the foregoing, the Court finds that claimant has set
forth a cause of action for retaliation under both federal and state law.
Accordingly, defendant’s motion to dismiss the retaliation causes of
action is denied.
Defendant also moves to dismiss claimant’s allegations of breach of
contract and fraudulent inducement. Claimant concedes that he is an at-will
employee. Termination of at-will employment does not give rise to a cause of
action for breach of contract (O’Connor v Eastman Kodak Co., 65
NY2d 724 ). Therefore, defendant’s motion to dismiss the breach of
contract claim is granted.
In order “[t]o sustain a claim for fraudulent inducement, there must be
a knowing misrepresentation of material fact, which is intended to deceive
another party and to induce them to act upon it, causing injury”
(Sokolow, Dunaud, Mercadier & Carreras v Lacher, 299 AD2d 64, 70 [1st
Dept 2002]). A viable claim of fraud must allege misrepresentations of present
facts rather than merely of future intent (Deerfield Communications Corp. v
Chesebrough-Ponds, Inc., 68 NY2d 954, 956 ).
Claimant alleges that he was induced into accepting employment with defendant
based upon the misrepresentations that defendant would “fast track”
his promotion to the rank of Associate or Full Professor in a tenure track
Claimant has failed to adequately assert that any of the alleged
misrepresentations were misrepresentations of present fact. The only
misrepresentation cited by claimant was defendant’s promise to be
“fast-tracked” for promotion, which is a non-actionable future
promise. It is significant that claimant has previously litigated this
allegation in a separate federal court action. In his February 6, 2009
decision, United States District Court Judge Arthur D. Spatt granted
defendant’s motion for failure to state a cause of action with regard to
this allegation (Rehman v State University of New York at Stony Brook,
596 F Supp 2d 643 [ED NY 2009]).
Judge Spatt evaluated claimant’s allegation and found in his decision
that claimant could not state a claim for fraudulent inducement. Judge Spatt
“[c]ritical to the Second Circuit’s decision in Stewart was
the distinction between ‘a prospective business partner’s promissory
statements as to what will be done in the future, which give rise only to a
breach of contract claim, and his or her false representation of present fact,
which give rise to a separable claim of fraudulent inducement’ (Stewart
v Jackson & Nash, 976 F2d 86, 89 [2d Cir 1992] [internal quotations and
citations omitted]). The court was persuaded that the employer’s
assurances that it had secured a large environmental law client and was in the
process of establishing an environmental law department were not merely future
promises, but representations of present fact (Id.). Here, Dr.
Waltzer’s purported assurances that the plaintiff would be fast tracked
for promotion and would have ample time to conduct research are non-actionable
future promises”(Rehman v State University of New York, 596 F Supp
2d 643, 659-660 [ED NY 2009]).
Consequently, defendant’s motion to dismiss the fraudulent inducement
claim is granted.
Although it is not readily apparent whether or not defendant is moving to
dismiss the cause of action alleging waste, the Court hereby dismisses the cause
of action as claimant cannot state a claim for waste.
Defendant also seeks dismissal pursuant to CPLR 3211(c)(1) based on documentary
evidence. “[S]uch motion may be appropriately granted only where the
documentary evidence utterly refutes [claimant’s] factual allegations,
conclusively establishing a defense as a matter of law” (Goshen v
Mutual Life Ins., 98 NY2d 314, 326 ). In the present case, defendant
fails to submit documentary evidence that meets that standard. Therefore, the
Court declines to dismiss any claims on this basis.
Defendant asserts that the claims pursuant to Title VII that arose prior to
June 16, 2006 and the claims pursuant to the Executive Law §§ 290,
et seq., that arose prior to January 28, 2005 are barred by the
applicable statute of limitations periods. Defendant makes no argument with
respect to the applicable time periods for ADEA claims. Defendant incorrectly
asserts that the present action was commenced on January 28, 2008. The instant
claim was actually filed with the Clerk of the Court of Claims on March 31,
2008. A notice of intention to file a claim was served on defendant on June 13,
Although a Human Rights Law claim brought against defendant in Supreme Court
would be subject to the three year statute of limitations period, claimant has
elected to bring his claim in the Court of Claims and is thereby subject to the
rules of this court. It is well settled that a claim arising under Executive
Law § 296, is a statutorily created discrimination claim and not a tort
claim (see Mills v County of 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) (see Clauberg v State of New York, 19 Misc 3d 942 [Ct Cl 2008]).
Section 10(4) provides in pertinent part that a claim shall be filed and served
upon the attorney general or a notice of intention to file a claim shall be
served upon the attorney general within six months after the accrual of such
claim. Thus, the Court finds that claimant’s state law claims are subject
to the requirements of Court of Claims Act § 10(4).
Likewise, since the ADEA was enacted pursuant to Article I legislation
(Kimel v Florida Board of Regents 528 US 62, 91 ), the Court finds
that the requirements contained within Court of Claims Act § 10(4) apply to
claimant’s ADEA claims (Alston v State of New York, 97 NY2d 159
; 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]).
However, Congress validly abrogated defendant’s immunity in enacting
Title VII of the Civil Rights Act of 1962 and the 1972 Amendments when it
exercised its power under § 5 of the Fourteenth Amendment (Alston v
State of New York, 97 NY2d 159 ; Fitzpatrick v Bitzer, 427 US
445 ). Pursuant to Title VII, a claimant may not recover damages for
discriminatory conduct that occurred more than 300 days before the filing of a
charge with the EEOC (42 USC § 2000e-5(e)(1)). Thus, the Court will not
apply the time limitations contained within Court of Claims Act § 10(4) to
the claims brought pursuant to Title VII.
Claimant argues that defendant’s discriminatory acts created a hostile
work environment that constitute a continuing violation and toll the applicable
limitations period. Claimant’s allegations of discrimination include both
discrete acts and hostile work environment claims. There is a distinction
between these types of claims for the purposes of determining the timeliness of
the claims. “[D]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges. Each
discrete discriminatory act starts a new clock for filing charges alleging that
act. The charge, therefore, must be filed within the 180-day or 300-day time
period after the discrete discriminatory act occurred. The existence of past
acts ... does not bar employees from filing charges about related discrete acts
so long as the acts are independently discriminatory and charges addressing
those acts are themselves timely filed” (National Railroad Passenger
Corp. v Morgan 536 US 101, 113 ). Examples of discrete acts include,
termination, failure to promote, denial of transfer or refusal to hire
(id.). Hostile work environment claims are different as their very
nature requires and involves repeated conduct. The unlawful employment practice
does not occur on any particular day, instead it occurs over a series of days or
perhaps years and such claims are based upon the cumulative effect of individual
acts (id.). Given that the incidents constituting a hostile work
environment are part of one unlawful employment practice, the employer may be
liable for all acts that are part of this single claim (id.). In order
for a charge to be timely, the employee need only file a charge within one
hundred eighty or three hundred days of any act that is part of the hostile work
Therefore, with regard to the state law claims and the ADEA claims, claimant
has no right to recover damages based upon discrete acts of discrimination
occurring prior to December 13, 2006 which is six months before the notice of
intention to file a claim was served on June 13, 2007. With regard to the
Title VII claims, claimant has no right to recover damages based upon discrete
acts of discrimination occurring prior to June 16, 2006, 300 days prior to the
filing of charges with the EEOC. However, events occurring before those dates
may be considered with respect to claimant’s hostile work environment
In summation, the Court dismisses the claims against the individual defendants
and amends the caption to reflect the State of New York as the only properly
named defendant in this matter. The Court also dismisses claims (counts) 5, 7,
8, 9, 10, 11, and 12 contained in the filed claim. The Court limits the
surviving claims (counts) 1, 2, 3, 4 and 6 to the appropriate time periods
Therefore, for the foregoing reasons, defendant’s motion is granted to
the extent stated herein and denied in all other aspects.