New York State Court of Claims

New York State Court of Claims

REHMAN v. THE STATE OF NEW YORK, #2009-045-021, Claim No. 115047, Motion No. M-74948


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:
Beldock Levine & Hoffman, LLPBy: Rachel Kleinman, Esq. and Cynthia Rollings, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Susan M. Connolly, AAG
Third-party defendant’s attorney:

Signature date:
August 5, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 the Department.

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 opportunities.

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 anesthesia.

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 practices.

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 of defendant.

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 waste.

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 [1994]). 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 [1989], Jett v Dallas Ind. School Dist., 491 US 701 [1989]; Brown v State of New York, 89 NY2d 172 [1996]). 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 [2001]). 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 [1997]).

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 pay.

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][1]). 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 [1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the [claimant]; and [3] 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 [1997]).

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 [2006]).

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 [1985]). 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 [1986]).

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 position.

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 reasoned that:

“[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 [2002]). 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, 2007.

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 [1983]; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367 [2007]; 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 [2000]), 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 [2001]; 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 [2001]; Fitzpatrick v Bitzer, 427 US 445 [1976]). 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 [2002]). 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 environment (id.).

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 claims.

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 stated above.

Therefore, for the foregoing reasons, defendant’s motion is granted to the extent stated herein and denied in all other aspects.

August 5, 2009
Hauppauge, New York

Judge of the Court of Claims