Rita Flynn, Claimant, v. New York State Department of Corrections and Community Supervision of the State of New York, Defendant. (2023)

The following papers numbered 1-4 were read and considered by the Court on the State's motion to dismiss the claim as untimely:

Notice of Motion, Attorney's Supporting Affirmation 1

Attorney's Affirmation In Opposition and Exhibits 2

Attorney's Reply Affirmation 3

Attorney's Supplemental Affirmation in Opposition and Exhibit 4

The State brings this motion to dismiss the instant claim based upon the affirmative defenses raised with specificity in the State's Verified Answer asserting that the claim is jurisdictionally defective because it was not timely commenced pursuant to the jurisdictional mandates of §§ 10 and 11 of the Court of Claims Act (Ex. E, ¶¶ 15-18). The State further argues that the filing of a complaint in Supreme Court does not toll claimant's time to serve and file a claim in the Court of Claims under CPLR 205 (a).

Claimant opposes the State's motion and argues that the time to serve and file a claim in the Court of Claims was tolled pursuant to CPLR 205 (a) as a result of the dismissal of the aforenoted Supreme Court action on March 4, 2021. Accordingly, claimant maintains that the filing of the claim in the Court of Claims on April 27, 2021 was timely and that the claim does not warrant dismissal.

Background

The instant claim seeks damages pursuant to Civil Service Law § 75-b based upon the allegations that claimant, a Sexual Offender/SIST [Strict and Intensive Supervision and Treatment] Parole Officer, employed by the New York State Department of Corrections and Community Services (DOCCS), was demoted and denied overtime hours and compensation in retaliation for her continued complaints about her employer's alleged lack of compliance with the Mental Hygiene Law related to the protection of the public's health and safety from a recently released sexual offender (Ex. D). The date of accrual of the claim is October 28, 2016 (id. at ¶ 100; Attorney's Affirmation in Opposition, p 1-2).

On January 26, 2017, claimant served the attorney general's office with a Notice of Intention To File a Claim, which was within 90 days of the accrual of the claim on October 28, 2016 (Attorney's Supplemental Affirmation in Opposition, Ex. 1).¹

On April 20, 2017, claimant commenced a related action in the United States District Court, Southern District of New York, alleging a violation of her federal constitutional right to free speech, a violation of 42 USC § 1983, a violation of Labor Law § 740, and a violation of Civil Service Law § 75-b (Ex. 2). On April 30, 2018, the Federal District Court dismissed the federal claim and declined to exercise supplemental jurisdiction over the remaining state law claim (Ex. 3).On July 5, 2018, claimant commenced an action in Supreme Court, Orange County, alleging that the State violated her rights under Civil Service Law § 75-b (Ex. C).

On March 10, 2020, claimant and DOCCS entered into a Stipulation of Settlement after engaging in arbitration regarding disciplinary charges brought by DOCCS against claimant seeking her termination. Claimant agreed to retire and resign from her employment no later than March 10, 2020 (Ex. A). As a result of the settlement, the Supreme Court found the claim for equitable relief was rendered moot and that the Supreme Court lacked jurisdiction over the remaining claim for damages. Accordingly, by Decision and Order dated March 4, 2021, the Supreme Court action was dismissed (Ex. B).

On April 27, 2021, a claim was filed in the Court of Claims and on May 14, 2021, a copy of the claim was served upon the attorney's general's office (Ex. D).² The State filed a Verified Answer on March 2, 2022 and raised several affirmative defenses that the claim was jurisdictionally defective on the grounds that it was not timely served upon the attorney general and was not timely filed with the Court of Claims pursuant to mandates of Court of Claims Act §§ 10 and 11 (Ex. E).³

Analysis

The service and filing requirements set forth in Court of Claims Act §§ 10 and 11 have been interpreted as "substantive conditions upon the State's waiver of sovereign immunity" (Lepkowski v State of New York, 1NY3d 201, 207 [2003]) The service and filing requirements are jurisdictional in nature and require strict compliance as a precondition of suit against the State and "[t]he failure to satisfy any of the conditions is a jurisdictional defect" compelling the dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). Both service and filing must occur within the statutory time period mandated by the Court of Claims Act (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).

In Dreger, the claims were timely filed with the Court of Claims, but the claims were not properly served upon the attorney general in the manner prescribed by Court of Claims Act § 11 and therefore the claims were dismissed. Claimants subsequently sought to recommence the claims after the claims were time-barred. The Court of Appeals noted that CPLR 205 (a) provides that a party whose "timely commenced" action has been dismissed and is now time-barred may apply to the court for permission to recommence the action, provided the action was not dismissed for failure to prosecute or under other circumstances not relevant in Dreger (id. at 723).

The question before the Court of Appeals was whether claimants had failed to meet the statutory "timely commencement requirement" of CPLR 205 (a) because of the failure to properly serve the attorney general in the Court of Claims actions. The Court of Appeals held that both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act and that there is no basis for believing that the legislature intended filing to independently constitute commencement (see Dreger, 81 NY2d at 724). The Court of Appeals explained that, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (id.). The Court of Appeals held that claimants did not meet the literal requirements of Court of Claims Act § 11 and that the actions were not timely commenced. Thus, the Court of Appeals concluded that relief under CPLR 205 (a) was not available.

In the instant case, claimant served the attorney general's office with a Notice of Intention To File a Claim on January 26, 2017 (Attorney's Supplemental Affirmation in Opposition, Ex. 1). The service of the Notice of Intention To File a Claim was timely made within 90 days after the accrual of the claim on October 28, 2016, in accordance with the jurisdictional mandates of Court of Claims Act §§ 10 (3) and 10 (3-b). Thereafter, the claim was filed with the Court of Claims on April 27, 2021 and a copy of the claim was served upon the attorney's general's office on May 14, 2021 (Ex. D). As over four years had lapsed since the service upon the attorney general of the Notice of Intention to File a Claim, the filing of the claim with the Court on April 27, 2021 and the service of the claim upon the attorney general on May 14, 2021 was not in accordance with the jurisdictional mandates of Court of Claims Act §§ 10 and 11.

Thus, this Court finds that claimant has not met the literal requirements of Court of Claims Act §§ 10 and 11 and that the claim was not timely commenced in the Court of Claims. As in Dreger (81 NY2d 721), relief under CPLR 205 (a) is therefore not available due to claimant's failure to meet the jurisdictional mandates of the Court of Claims Act which have been held to be conditions precedent to the State's waiver of sovereign immunity against suit in the Court of Claims (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 379 [1999] ["The legislative intent to condition the waiver of sovereign immunity . . . upon timely suit could not be more clear . . . (t)hus, CPLR 205 (a) is inapplicable because, here, the 'right to seek relief is specifically conditioned upon compliance with a particular time requirement rather than, or in addition to, a Statute of Limitations' " (citation omitted)]; Lichtenstein v State of New York, 93 NY2d 911[1999][The statutory mandates of the Court of Claims Act for service and filing of a claim against the State were not met and therefore relief under CPLR 205 (a) was not available]).

Accordingly, the State's motion to dismiss the claim is GRANTED.

FOOTNOTES

1.   Throughout the Attorney's Affirmation in Opposition, the Notice of Intention to File a Claim served on January 25, 2017 is incorrectly referred to as a "Notice of Claim."

2.   The claim is incorrectly denominated as a complaint.

3.   Claimant asserts at page 4 of the Attorney's Affirmation in Opposition that the State did not submit a Verified Answer to the claim until after claimant inquired about bringing a default motion against the State.

Walter Rivera, J.