New York State Court of Claims

New York State Court of Claims
GOONEWARDENA v. THE CITY UNIVERSITY OF NEW YORK and THE STATE OF NEW YORK, # 2010-016-008, Claim No. 112202, Motion Nos. M-76959, M-77434


Case information

UID: 2010-016-008
Claimant short name: GOONEWARDENA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112202
Motion number(s): M-76959, M-77434
Cross-motion number(s):
Claimant's attorney: Prasanna W. Goonewardena, Pro Se
Defendant's attorney: Andrew M. Cuomo, Attorney General
By: John M. Hunter, AAG
Third-party defendant's attorney:
Signature date: March 15, 2010
City: New York
Official citation:
Appellate results:
See also (multicaptioned case)


Defendants move to dismiss the claim of Prasanna W. Goonewardena for failure to state a cause of action against the State of New York; for an order granting them leave to supplement their verified answer to include the affirmative defense of collateral estoppel; and for an order dismissing the claim against the City University of New York ("CUNY") on the basis of such defense. For his part, Mr. Goonewardena moves for permission to amend his claim.

In his claim, Goonewardena alleges that he has been injured by CUNY's refusal to lift his suspension and remove negative comments from his college transcript, and that its failure to do so is evidence that he has been discriminated against because of his "color, national origin, race and disability."


On December 7, 1995, claimant was temporarily suspended from Hunter College pursuant to Article 15 of the CUNY bylaws for violations of Article 129 A of the New York State Education Law. Specifically, claimant was charged with having stalked, harassed and physically assaulted another student. See exhibit 1 to claimant's opposition papers. A hearing was scheduled to take place on December 13, 1995 before the Student Faculty Disciplinary Committee, but was postponed at claimant's request. Years later, also at claimant's request, a hearing was scheduled for June 25, 2003 before the Disciplinary Committee. Claimant did not attend the hearing, which took place in his absence; an audio recording and transcript of the proceeding were generated. By letter dated June 26, 2003, the Committee informed claimant that it had imposed a university-wide suspension, which would remain in effect until he received psychiatric treatment and submit documentation from a psychiatrist demonstrating, at a minimum, that he was no longer a danger to himself or others. See exhibit C to defendant's moving papers.

In March 2004, claimant forwarded a letter from his psychiatrist to the CUNY administration. The matter was referred to the Associate Dean of Students, Michael Escott, who informed claimant in a March 16, 2004 letter that his case would be reviewed in accordance with the prior disciplinary committee findings. See exhibit B to defendant's moving papers. Correspondence between the parties ensued, and ultimately, claimant was informed that the letters from his psychiatrist did not satisfy the conditions for the removal of his suspension, and that he would not be readmitted to the college until he complied with such conditions. See exhibit A to defendant's moving papers.

Procedural History

On May 12, 2005, claimant served a notice of intention to file a claim on CUNY and the State of New York. In July 2005, claimant commenced an Article 78 proceeding in Supreme Court, New York County against the State of New York and CUNY, requesting that the court remove the suspension and any resulting negative comments contained in his academic file.

In October 2005, claimant commenced an action in the United States District Court for the Southern District of New York against Hunter College; CUNY; Jennifer Raab, President of Hunter College; and Michael Escott, Associate Dean of Students. An amended complaint was filed in January 2006.

On January 3, 2006, the Article 78 proceeding was dismissed as untimely against CUNY and dismissed against the State, which had "correctly move[d] to be dismissed." See exhibit D to defendant's moving papers, Goonewardena v State of New York and City University of New York, Sup Ct, January 3, 2006 (unreported, index no. 109664/05, Wetzel, J.) That decision was affirmed by the Appellate Division, First Department in Goonewardena v Hunter College, 40 AD3d 443 (1st Dept 2007).

On April 19, 2006, the State of New York and CUNY were served with the claim in this action. Defendant's Verified Answer was served on May 26, 2006 and filed with the Clerk of the Court on May 30, 2006.

The federal action defendants moved to dismiss the amended complaint on the grounds that the court lacked jurisdiction over several of the claims against CUNY, and that the remaining claims failed to state a cause of action. On February 14, 2007, the District Court denied the motions to dismiss the disability claim brought under the ADA and Rehabilitation Act against CUNY. The court dismissed all of the Title III, Title VI, and Title IX claims. See exhibit G to defendant's moving papers, Goonewardena v State of New York, 475 F Supp 2d 310 (SDNY 2007). As relevant here, the court addressed the discrimination claim based on race, color and national origin brought under Title VI:(1)

As to plaintiff's claims against CUNY, rather than asserting a claim alleging that CUNY's policies or general practices are discriminatory, Goonewardena seeks to hold CUNY accountable for the acts of its employees. Liability under Title VI . . . cannot be imputed to institutions based on the actions of their employees . . . Further, even if I were to adopt the proposition that an educational institution may be liable under Title VI for the actions of its employees if the institution is 'deliberately indifferent' to discrimination to such an extent that the indifference may be viewed as racially motivated, . . . Goonewardena has failed to allege that the school acted with the requisite discriminatory intent . . .While Goonewardena alleges that Escott's actions 'show that he [Escott] has a prejudice towards the plaintiff because of his ethnicity, race, national origin . . . ,' plaintiff fails to allege any acts of discrimination, other than his ultimate suspension, and fails to allege that he reported any incidents of discrimination to CUNY officials. This is insufficient to state a claim against CUNY under Title VI. . . I therefore conclude that any claim under Title VI of the Civil Rights Act against CUNY is dismissed.

Id. at 328-329.

Subsequently, the federal defendants moved for summary judgment on the remaining disability discrimination claims. By order dated August 26, 2008, the District Court granted summary judgment in favor of the defendants. See exhibit H to defendant's moving papers. The court stated that prior to March 2004 (the time when the first psychiatrist's letter was received), defendants were unaware that Mr. Goonewardena suffered from a mental affliction, and in order to satisfy an ADA and Rehabilitation Act claim, the individual must have been excluded due to his disability. The court explained that, "[a] public entity and its employees cannot exclude or discriminate because of disability without having awareness of the disability." Goonewardena v State of New York, 2008 WL 4090467 at 9 (SDNY 2008).

As to the discrimination claims based on the defendants' failure to lift the suspension despite Mr. Goonewardena having submitted a number of letters from his psychiatrist, the court ruled that there was no direct evidence of alleged discriminatory conduct. As to indirect evidence of discrimination, the court applied the McDonnell Douglas burden shifting analysis. See generally McDonnell Douglas Corp. v Green, 411 US 792 (1973). The court stated that defendants had established a legitimate nondiscriminatory reason for not accepting the letters as sufficient to lift plaintiff's suspension. The burden then shifted to Mr. Goonewardena to show that the reason provided by defendants was pretext for intentional discrimination. The court concluded that his "assertion does not support plaintiff's discrimination claims or indicate the existence of discriminatory animus or pretext. Plaintiff's reliance on mere conjecture, speculation and conclusory assertions, unsupported by evidence, cannot suffice to defeat summary judgment." See Goonewardena v State of New York, 2008 WL 4090467 at 13. Mr. Goonewardena's request for reconsideration was denied. See exhibit I to defendant's moving papers, Goonewardena v State of New York, 2008 WL 4921657 (2008).

The State of New York

CUNY and the State of New York are distinct legal entities and the State is not a proper defendant in claims based on the alleged actions of CUNY. See, e.g., Davalos v City University of New York, Ct Cl, February 4, 2002 (unreported, claim no. 105280, motion nos. M-64508 and CM-64564, UID #2002-016-010, Marin, J.).

Leave to Amend Answer

Defendant seeks to supplement its verified answer to include the affirmative defense of collateral estoppel based upon the federal action.

"Leave to amend the pleadings 'shall be freely given' absent prejudice or surprise resulting directly from the delay." Fahey v Ontario County, 44 NY2d 934, 935 (1978). In addition, permission to amend is not to be granted upon the mere request of a party without a proper basis. See Wieder v Skala, 168 AD2d 355 (1st Dept 1990). Clearly, defendant has a proper basis to amend and claimant has failed to demonstrate that he suffered any prejudice as a result of the affirmative defense not having been raised in the original answer. See Barbour v Hospital for Special Surgery, 169 AD2d 385, 386 (1st Dept 1991). Having commenced the federal action against the State, Goonewardena cannot now claim surprise that defendant would seek to assert the defense of collateral estoppel. See Murray v City of New York, 51 AD3d 502 (1st Dept 2008); Norwood v City of New York, 203 AD2d 147 (1st Dept 1994).

Collateral Estoppel

The equitable doctrine of collateral estoppel precludes a party from relitigating in a subsequent action an issue clearly raised in a prior action and decided against that party or those in privity to that party. Ryan v New York Tel. Co., 62 NY2d 494, 500 (1984). "The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action . . ." Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 (1985) (citations omitted). See also D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 (1990). The "full and fair opportunity" prong is satisfied only if it can be established that the subject issue was actually litigated and determined in the prior action. See Singleton Mgt. v Compere, 243 AD2d 213, 217 (1st Dept 1998). For an issue to have been actually litigated, "it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding." Matter of Halyalkar Board of Regents of the State of New York, 72 NY2d 261, 268 (1988).

Though not specifically pleaded, claimant's allegations would arise under New York State Executive Law, Art. 15 (Human Rights Law). Specifically, Executive Law 296.4 provides in relevant part that, "[i]t shall be an unlawful discriminatory practice for an education corporation or association . . . to deny the use of its facilities to any person otherwise qualified, or to permit the harassment of any student or applicant, by reason of his race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status . . . ."

As the federal court dismissed the claims based on disability on one ground, and the claims based on race, color and national origin on a different ground, the Court will address them separately.

Disability Discrimination

Mr. Goonewardena's claim based on his disability is barred by the doctrine of collateral estoppel. New York State disability discrimination claims are governed by the same legal standards as federal ADA and Rehabilitation Act claims. See Camarillo v Carrols Corp., 518 F3d 153, 158 (2d Cir 2008); and Rodal v Anesthesia Group of Onondaga, P.C., 369 F3d 113, 117, n. 1 (2d Cir 2004). In reaching its conclusion, the District Court applied the same burden shifting analysis used in state court and rejected Mr. Goonewardena's disability claims. See generally Epstein v Kalvin-Miller Intern., Inc., 139 F Supp 2d 469, 475-76 (SDNY 2001) (discrimination claims under New York Human Rights Law are analyzed under burden-shifting framework developed in McDonnell Douglas). See also Murray v City of New York, 51 AD3d 502 (1st Dept 2008). Claimant had full and fair opportunity to contest federal defendants' summary judgment motion and was unsuccessful in doing so.

Race, Color, and National Origin Discrimination

Claims alleging racial discrimination in violation of 296.4 of the New York State Executive Law are analyzed under similar standards as are claims under Title VI. See, e.g., Folkes v New York College of Osteopathic Medicine of New York Institute of Technology, 214 F Supp 2d 273, 293 (EDNY 2002), stating that, "[f]or the reasons stated above in regard to [plaintiff's] Title VI claim, the plaintiff has presented wholly insufficient evidence of racial discrimination and cannot invoke section 296 (4) on that basis." The standard of liability imposed on an educational institution under Title VI is whether or not the institution showed deliberate indifference to the discriminatory behavior. See Davis v Monroe County Board of Education, 526 US 629 (1999). The district court determined that based on that legal standard, Mr. Goonewardena's allegations were insufficient to state a claim against CUNY. "[W]hen a complaint is dismissed for legal insufficiency or other defect in pleading, it does not act as a bar to commencement of a new action for the same relief unless the dismissal was expressly made on the merits or the new complaint fails to correct the defects or omissions fatal to the prior one." Deacon's Bench, Inc. v Hoffman, 101 AD2d 971, 972 (3d Dept 1984) (citations omitted). See also Brown v State of New York, 9 AD3d 23, 27 n. 2 (3d Dept 2004). The allegations in Mr. Goonewardena's claim in this court (Defendant's Exhibit A, Claim) are virtually identical to the ones asserted in the federal action (Defendant's Exhibit C, Amended Complaint); the claim fails to allege any additional facts not considered in the federal action, and relies on the same exhibits. See Garg v Albert Einstein College of Medicine of Yeshiva Univ., 747 F Supp 231, 236 (SDNY1990). As in the prior action, the instant claim alleging discrimination also fails to state a cause of action, and must be dismissed.(2)

Motion to Amend Claim

Claimant seeks permission to amend his claim to include the following causes of action: 1) violation of New York State Executive Law, Article 15, section 296.2 (a), "Human Rights Law section 107," and "Civil Rights Law section 106 "; 2) breach of contract; and 3) negligence, based on "negligent discriminatory actions" by which claimant "suffered career set backs and emotional distress." Defendant opposes the motion.

As set forth above, CPLR 3025 provides that leave to amend a pleading shall be freely granted absent prejudice or surprise from the delay. However, such permission to amend is not to be granted upon the mere request of a party without a proper basis. See Wieder v Skala, supra. Rather, it is incumbent upon the movant to make "some evidentiary showing that the claim can be supported" Cushman & Wakefield, Inc. v John David, Inc., 25 AD2d 133, 135 (1st Dept 1966). Leave to amend will be denied where the proposed pleading fails to state a cause of action. See Bencivenga & Co. v Phyfe, 210 AD2d 22 (1st Dept 1994); Tishman Const. Corp. of New York v City of New York, 280 AD2d 374 (1st Dept 2001).

With regard to the first and third proposed causes of action, to the extent that claimant alleges that defendant discriminated against him on the basis of his color, national origin, race and disability, such claims were already presumed and have been addressed above.(3)

Further, claimant does not elaborate on what acts comprise defendant's alleged "negligent discriminatory actions," or how, if at all, the third proposed cause of action differs from the allegations made in the original claim. See, e.g., Posner v Central Synagogue, 202 AD2d 284, 285 (1st Dept 1994) ("plaintiff failed to establish any factual or legal basis for the proposed amended claim that the defendant had engaged in discriminatory conduct").

In sum, the Court finds with respect to the first and third proposed causes of action, claimant has merely refashioned the allegations made in his original claim. See American Theatre for the Performing Arts, Inc. v Consolidated Credit Corp., 45 AD3d 506 (1st Dept 2007).

To the extent claimant seeks to amend his claim to add a cause of action based on breach of contract, he fails to identify the formation of a contract between the parties, that claimant performed, that defendant failed to perform, and that claimant suffered damages as a consequence, all of which are elements that are required when pleading a breach of contract claim. See Clearmont Property, LLC v Eisner, 58 AD3d 1052 (3rd Dept 2009); see also Posner, 202 AD2d at 284; 1776 Second Ave. Associates v Beyer, Blinder & Belle, 173 AD2d 396, 397 (1st Dept 1991). Moreover, even if claimant had alleged an implied contract, the same pleading requirement would apply. See Maas v Cornell University, 94 NY2d 87, 94-95 (1999). In light of the foregoing, the Court finds that the proposed cause of action for breach of contract is devoid of merit.

In view of the foregoing, having read the submissions(4)

, IT IS ORDERED that defendants' motion be granted, that claimant's motion be denied and that claim no. 112202 be dismissed.

March 15, 2010

New York, New York


Judge of the Court of Claims

1. 42 USCA 2000d provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance" (Pub.L. 88-352, Title VI, 601, July 2, 1964, 78 Stat. 252).

2. Though defendants did not specifically reference CPLR 3211 (a) (7) in their papers, there is no prejudice to claimant, and thus the Court relies on the general relief clause in such section. See Siegel, NY Prac 258, at 440 (3d ed).

3. As to "Civil Rights Law section 106," the Court finds no such specific provision that has relevance here. As to "Human Rights Law section 107," it appears that claimant is referring to New York City Human Rights Law (NYC Admin Code 8-107: Unlawful Discriminatory Practices). The New York State Human Rights Law, the New York State Civil Rights Law and the New York City Human Rights Law collectively forbid discrimination by reason of race, creed, color, national origin, sex, marital status, sexual orientation and disability. In any event, the same standards apply to claims brought under NYC Administrative Code 8-107 as to claims brought under State Executive Law 290 et. seq. See Whaley v City University of New York, 555 F Supp 2d 381 (SDNY 2008). "[T]here is no difference between the rights granted under the New York City Civil Rights Law and those under the state . . . statute or the manner and amount of proof required . . . The wording of the city ordinance and the manner in which it has been applied show a clear intent to parallel the obligations and the remedies provided by the State of New York and the United States." Mohamed v Marriott Intern., Inc., 905 F Supp 141, 157 (SDNY 1995), citing Matter of Pace Univ. v New York City Commn. on Human Rights, 200 AD2d 173 (1st Dept 1994), rev'd on other grounds, 85 NY2d 125 (1995).

4. The following were reviewed: defendants' notice of motion no. M-76959 with affirmation in support and exhibits A through K; claimant's affidavit in opposition to motion no. M-76959 with exhibits 1 through 8; claimant's notice of motion no. M-77434 with affidavit in support and exhibits 1 through 5; and defendant's affirmation in opposition to motion no. M-77434.