Susan Rosenthal, Claimant, v. The State of New York, Defendant. (2025)

This claim arises from the allegedly wrongful termination of claimant Susan Rosenthal from her former position as President and CEO of the Roosevelt Island Operating Corporation (RIOC), a public benefit corporation. Claimant alleges a violation of Civil Service Law § 75-b, commonly known as the public sector "whistleblower" law, asserting that she was terminated in retaliation for raising concerns about the alleged failure of the State and the City of New York to address a safety issue on Roosevelt Island. The claim also raises causes of action for defamation and a violation of the State Constitution, both of which are based upon allegedly false statements made by a senior adviser to former Governor Andrew Cuomo in a New York Post article. Defendant has moved  ¹ to dismiss the claim and the amended claim on various grounds. Claimant did not oppose the initial motion to dismiss, but opposes the motion to dismiss the amended claim. This claim presents two unique jurisdictional issues: whether (1) claims pursuant to Civil Service Law § 75-b are governed by a 90-day statute of limitations or, alternatively, a 6-month statute of limitations under the Court of Claims Act; and (2) the Court has jurisdiction to entertain a claim pursuant to Civil Service Law § 75-b where claimant's employer—the real party in interest in a claim brought under section 75-b—is RIOC. Oral argument was held on the motions and, at the Court's direction, the parties thereafter submitted supplemental briefing. For the reasons that follow, both the claim and amended claim are dismissed.

Facts and Procedural History

Claimant alleges that in June 2020, an employee of RIOC filed a meritless complaint accusing claimant of using racist and sexually offensive language in the workplace. On June 16, 2020, an Affirmative Action Officer (AAO) from the Governor's Office of Employee Relations (GOER) spoke with claimant on the telephone about the employee complaint for approximately 75 minutes. Two days later, the AAO told claimant that GOER possessed audio recordings in which one could hear claimant making "racist and sexually inappropriate statements" (Amended Claim, ¶ 3). Claimant denies making any such statements, asserts that she was not permitted an opportunity to listen to the recordings, and alleges that defendant never actually had these recordings in its possession.

The claim further alleges that on June 19, 2020, claimant received a phone call from three members of Governor Cuomo's administration: Joseph Rabito, the Executive Secretary to the Governor; Kumiki Gibson, Counsel to the Governor; and Simonida Subotic, the Deputy Secretary for Economic Development.² According to claimant, these officials told her that she "had been terminated" from her position at RIOC effective immediately and provided no reason for the termination (id. ¶ 38). Claimant alleges that "[n]o RIOC Board meeting or vote was held" before she was "notified of her firing" (id.).

On the same day as the phone call, the New York Post published an article about claimant's termination. The article quoted Richard Azzopardi, a senior adviser to Governor Cuomo, stating with regard to the investigation as follows:

A complaint was made to the Governor's office on June 12th by an employee of the [RIOC] that alleged that the President of the organization had used inappropriate language and engaged in inappropriate conduct in the workplace . . . This complaint was immediately referred to [GOER] for investigation . . . This investigation substantiated that the [P]resident had used racially and sexually offensive language, in clear violation of state policy and the strict standards set by this Administration . . . The [P]resident was immediately terminated

(id. ¶ 40 [emphasis omitted]). The claim states that an "emergency RIOC Board meeting" was held that same day (id. ¶ 41). At that meeting, the RIOC Board allegedly approved the appointment of an interim President and CEO without granting claimant an opportunity to be heard.

Claimant alleges that the purported basis for her termination—her alleged use of racist and sexually offensive language—was pretextual. According to claimant, she was actually terminated because she had advocated for either the State or the City of New York to repair the steam tunnels on Roosevelt Island. The tunnels are physical structures that once served to carry steam between two hospitals, but also act as a "protective sea wall" for the island (id. ¶ 21). The claim alleges that the steam tunnels are in "serious disrepair" and a failure to repair them could lead to a "catastrophic safety situation" if there is a major weather event (id. ¶ 3, 21). Claimant believed that the City of New York bore responsibility for repairing the steam tunnels, and the City believed the State was responsible. Claimant devised a plan which would have required the State to assume responsibility for the repairs, but the State apparently declined this proposal. Claimant then requested that the State "demand that the City repair the tunnels," but this plan was also not pursued by the State. Ultimately, claimant "compose[d] a short memorandum stressing both the public safety risks, as well as the State's political jeopardy, stemming from the steam tunnels" (id. ¶ 22), and shared the memorandum with the Governor's Office (see id. ¶ 3).

These events were litigated in two court proceedings before the instant claim was filed. First, claimant filed a proceeding in Supreme Court pursuant to CPLR article 78 against RIOC, the State, and numerous individuals, seeking to annul the respondents' determination to terminate her employment at RIOC (see Matter of Rosenthal v Roosevelt Island Operating Corp. et al., NY County Index No. 158795/2020, NYSCEF Doc. No. 1). The verified petition was electronically filed on October 19, 2020, and served personally on the Office of the Attorney General on November 4, 2020 (see id., NYSCEF Doc. No. 16). The petition asserted that claimant had been falsely accused of racism and sexism and that she was unlawfully terminated on account of her race; notably, the petition raised no allegations of retaliation related to the Roosevelt Island steam tunnels. By judgment dated July 6, 2021, Supreme Court, New York County (Engoron, J.), dismissed the petition (see Rotondi Affirm in Supp of Mot to Dismiss Amended Claim, Exh C). Mindful of the limited standard of review under CPLR article 78, Justice Engoron determined that "[r]espondents' determination to terminate [claimant] clearly was not irrational" (id.). Justice Engoron further stated that the individuals who complained about claimant's allegedly offensive comments "could [have been] lying," but the appropriate forum to resolve such issue would be "a trial in a plenary action" (id.). Justice Engoron thereafter denied claimant's motion to renew or reargue (see Rotondi Affirm in Supp of Mot to Dismiss Amended Claim, Exh D). Claimant appealed the judgment, which was ultimately affirmed (see 209 AD3d 598 [1st Dept 2022]).

During the pendency of the article 78 proceeding, claimant had filed a plenary action in Supreme Court against the same entities and persons named as respondents in the article 78 proceeding (see Rosenthal v Roosevelt Island Operating Corp. et al., NY County Index No. 154096/2021, NYSCEF Doc. No. 1). The plenary action was filed on April 27, 2021, and the summons and complaint were personally served on the Attorney General's Office on May 4, 2021 (see Cl's Supplemental Mem in Opp, Exh B). On July 26, 2022, Supreme Court (Hagler, J.) granted the defendants' motion to dismiss the complaint (see Index No. 154096/2021, NYSCEF Doc. No. 70). Justice Hagler held that the first three causes of action based upon "unlawful discrimination" were barred by collateral estoppel, and dismissed the remaining causes of action—including a whistleblower claim under Labor Law § 740 pertaining to the Roosevelt Island steam tunnels— "without prejudice as they were improperly brought in Supreme Court, instead of before the Court of Claims which has jurisdiction over claims against New Yo[r]k State, its subdivisions, and those individuals acting on its behalf" (id.). Claimant appealed only from so much of the order as dismissed the first three causes of action, and the First Department affirmed (see 221 AD3d 551 [1st Dept 2023]).

This claim was filed on January 25, 2023, after Justice Hagler dismissed the Supreme Court plenary action. The original claim raised three causes of action: (1) a retaliatory termination claim under state whistleblower laws; (2) common-law defamation based upon the statements made in the New York Post; and (3) a violation of claimant's federal constitutional rights under 42 USC § 1983. The amended claim is substantially similar to the original claim, except that it removes the cause of action asserted under 42 USC § 1983 and replaces it with one alleging a violation of article I, § 6 of the New York Constitution.

Analysis

Initially, defendant's motion to dismiss the original claim filed in this matter is denied as moot inasmuch as "the amended [claim] takes the place of the original pleading" and defendant has filed a subsequent motion to dismiss each cause of action in the amended claim (Mees v Buiter, 186 AD3d 1670, 1672 [2d Dept 2020] [internal quotation marks omitted], lv denied 37 NY3d 908 [2021]; see Smith v Russell Sage Coll., 78 AD2d 913, 913 [3d Dept 1980], affd 54 NY2d 185 [1981]; see also 100 Hudson Tenants Corp. v Laber, 98 AD2d 692, 692 [1st Dept 1983]; Sullivan v State of New York, UID No. 2002-028-027 [Ct Cl, May 3, 2002] [Sise, P.J.]). Given the myriad jurisdictional issues presented, the Court will consider defendant's motion to dismiss the amended claim separately with respect to each cause of action raised therein, beginning with the whistleblower claim.

I. Civil Service Law § 75-b

Claimant's whistleblower cause of action alleges that she was terminated in retaliation for raising her concerns about the alleged failure of the State and City of New York to address what she believed to be a serious safety issue with respect to the Roosevelt Island steam tunnels. This cause of action is purportedly brought pursuant to Labor Law § 740 but, because claimant was a public employee, it is in fact "governed by the standards set forth in Civil Service Law § 75-b"—the public sector whistleblower protection law—and not Labor Law § 740, the provision that applies to private employers (Hanley v New York State Exec. Dept., Div. for Youth, 182 AD2d 317, 320 [3d Dept 1992]). Claimant is correct, however, that the cause of action need not be dismissed solely because the claim erroneously cites to Labor Law § 740 instead of Civil Service Law § 75-b (see Castro v City of New York, 141 AD3d 456, 459 [1st Dept 2016] [holding that a notice of claim under General Municipal Law § 50-e was sufficient to provide notice of Civil Service Law § 75-b claim despite not specifically mentioning the statute]; see generally Sassi v Mobile Life Support Servs., Inc., 37 NY3d 236, 239 [2021] [noting that a claim need not be dismissed for failure to state a cause of action merely because it is improperly labeled or inartfully stated]).

Civil Service Law § 75-b provides that a public employer cannot terminate a public employee "because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" (Civil Service Law § 75-b [2] [a]; see Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 91 [2010]; Lilley v Greene Cent. Sch. Dist., 168 AD3d 1180, 1181 [3d Dept 2019]). "Improper governmental action" is defined to mean "any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of [their] employment, and which is in violation of any federal, state or local law, rule or regulation" (Civil Service Law § 75-b [2] [a]).

A. Timeliness

Defendant first argues that the claim was untimely served and filed with respect to the Civil Service Law § 75-b cause of action. The service and filing requirements of Court of Claims Act (CCA) § 11 (a) are substantive conditions on the State's waiver of sovereign immunity and, as such, a claimant's failure to comply with them deprives the Court of subject matter jurisdiction and compels dismissal of the claim (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; see also Lepkowski v State of New York, 1 NY3d 201, 209 [2003]). CCA § 11 (a) provides that "[t]he claim shall be filed with the clerk of the court . . . [and] a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general" within the time periods provided under CCA § 10. As relevant here, section 10 requires that claims sounding in tort be served and filed within 90 days of the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within that period; if so, the time to file and serve the claim is extended to two years from the date of accrual in unintentional tort claims, and one year from the date of accrual in intentional tort claims (see CCA §§ 10 [3], [3-b]). In addition, section 10 establishes a six-month statute of limitations for breach of contract claims and "any other" type of claim not otherwise specified under section 10 (id. § 10 [4]).

Here, the parties' dispute over timeliness boils down to whether the applicable time period for Civil Service Law § 75-b claims is the 90-day limitations period of CCA §§ 10 (3) or (3-b), or the 6-month limitations period of CCA § 10 (4). The parties agree that the limitations period did not begin to run until November 4, 2020, because the claim accrued during the period that the statute of limitations was tolled by Executive Orders issued during the COVID-19 pandemic (see 9 NYCRR 8.202.8, 8.202.72; Matter of Roach v Cornell Univ., 207 AD3d 931, 933 [3d Dept 2022], citing Chavez v Occidental Chem. Corp., 35 NY3d 492, 505 n8 [2020] and Brash v Richards, 195 AD3d 582 [2d Dept 2021]). The parties further agree that the Supreme Court plenary action was brought exactly six months after the limitations period began to run. Claimant argues that the Supreme Court plenary action was commenced within the six-month statute of limitations provided by CCA § 10 (4) and, thus, this claim was timely brought following the dismissal of that action pursuant to CPLR 205 (a). Defendant argues that the 90-day statute of limitations under CCA § 10 (3) or (3-b) applies and, thus, the cause of action cannot be revived pursuant to CPLR 205 (a) because it was not "timely commenced" within the meaning of that provision.

There is seemingly no appellate authority directly on point as to which limitations period applies to Civil Service Law § 75-b claims. However, as claimant notes, the First Department has held that such claims are "not tort actions" and are "not personal injury, wrongful death, or damage to personal property claims" for purposes of the notice of claim requirement under General Municipal Law §§ 50-e and 50-i (Castro, 141 AD3d at 458, citing Margerum v City of Buffalo, 24 NY3d 721, 730 [2015] [holding that retaliation claims under the New York State Human Rights Law are not tort actions]). The First Department's conclusion with respect to General Municipal Law claims is consistent with section 9 of the Court of Claims Act, which specifically provides for the Court's jurisdiction over Civil Service Law § 75-b claims in a separate paragraph from the general grant of jurisdiction over tort claims (compare CCA § 9 [2], with id. § 9 [13]; cf. Sager v County of Sullivan, 145 AD3d 1175, 1176-1177 [3d Dept 2016] [acknowledging Castro's holding that whistleblower claims are not tort claims for purposes of the General Municipal Law], lv denied 29 NY3d 902 [2017]). Thus, the Court concludes that the 90-day limitations period under CCA §§ 10 (3) and (3-b), applicable to claims for personal injury or injury to property caused by the "tort[s]" of defendant's employees, does not encompass Civil Service Law § 75-b claims.³ Rather, as claimant argues, the cause of action is governed by the six-month limitations period under CCA § 10 (4). Taking into account defendant's concession with respect to the applicability of CPLR 205 (a), as well as defendant's acknowledgment that the action would be timely if the six-month statute of limitations applies (see Def's Supplemental Mem in Supp, at 2), this cause of action is therefore timely.

B. Jurisdiction over RIOC

There is a second jurisdictional issue implicated here, namely, whether the Court of Claims may entertain a claim pursuant to Civil Service Law § 75-b if the State is not claimant's employer. Although the parties did not raise the issue in their original motion filings, the Court may consider issues of its jurisdiction sua sponte (see Erie Blvd. Hydropower, LP v State of New York, 90 AD3d 1292, 1293 [3d Dept 2011]). And following oral argument, the Court gave the parties an opportunity to brief the issue.⁴ Defendant now argues that the Court lacks subject matter jurisdiction over this cause of action because claimant's employer for purposes of Civil Service Law § 75-b was RIOC, not the State, and the Court of Claims lacks jurisdiction over RIOC. Claimant, for her part, acknowledges that this Court generally lacks jurisdiction over claims against RIOC (see Cl's Supplemental Mem in Opp, at 13 n 10). But claimant contends that the State was her "de facto" employer because members of Governor Cuomo's administration exercised control over her and purported to terminate her (Oral Argument Tr., at 32). In addition, claimant argues in her supplemental memorandum that Civil Service Law § 75-b does not require the existence of an employer-employee relationship in order for her to bring an action under that statute against the State.

Court of Claims Act § 9 (13) provides this Court with jurisdiction to entertain claims under Civil Service Law § 75-b, but only to the extent such claims are against "the [S]tate." RIOC is not the State; rather, it is a public benefit corporation established by law to "plan, design, develop, operate, maintain[,] and manage Roosevelt Island" (Public Authorities Law § 2799-aaaa, formerly McKinney's Unconsolidated Laws § 6385, L. 1984, ch. 899, § 1).⁵ Generally, public benefit corporations—in contrast to State agencies—are "not identical to the State" and retain "an existence separate and apart from the State" (John Grace & Co., Inc. v State Univ. Constr. Fund, 44 NY2d 84, 88 [1978]; see Gembala v Audobon Assn., 97 AD2d 345, 346 [4th Dept 1983]). Indeed, RIOC has the power to "[s]ue and be sued" in its own name (Public Authorities Law § 2799-dddd [1]); make bylaws for its "organization and internal management" (id. § 2799-dddd [3]); acquire property and enter contracts (see id. § 2799-dddd [4] - [6]); and, significantly, appoint its own officers and employees, prescribe their duties, and fix their compensation (see id. § 2799-dddd [7]).

A public benefit corporation cannot be sued in the Court of Claims unless the Legislature expressly provides for such jurisdiction (see Gembala, 97 AD2d at 346 [Urban Development Corporation]; Plath v New York State Olympic Regional Dev. Auth., 304 AD2d 885, 886 [3d Dept 2003]). Here, RIOC's enabling statute does not provide for jurisdiction in the Court of Claims. To the contrary, the enabling statute contains typical indicia that jurisdiction was intended to lie in Supreme Court, namely, the specific grant of authority to sue and be sued (see Public Authorities Law § 2799-dddd [1]; Gembala, 97 AD2d at 346), as well as the incorporation of the General Municipal Law notice of claim provisions (see Public Authorities Law § 2799-hhhh [2]; Erie Blvd. Hydropower, 90 AD3d at 1293). This Court thus concludes—consistent with the holdings of the publicly available cases to consider the issue—that the Court of Claims lacks jurisdiction over claims against RIOC (see DelRosario v State of New York, UID No. 2011-038-526 [Ct Cl, Apr. 28, 2011] [DeBow, J.]; DiMaggio v State of New York, UID No. 2013-049-020 [Ct Cl, Apr. 23, 2013] [Weinstein, J.]; McCray v State of New York, UID No. 2018-028-524 [Ct Cl, Nov. 26, 2018] [Sise, P.J.]; see also Kircher v State of New York, UID No. 2008-016-054 [Ct Cl, Oct. 1, 2008] [Marin, J.]).

To be sure, some federal district courts have concluded that RIOC is an "arm of the State" for purposes of determining whether it enjoys sovereign immunity from suit in federal court under the 11th Amendment of the United States Constitution (Lewis v Roosevelt Island Operating Corp., 246 F Supp 3d 979, 987 [SD NY 2017], citing Chafetz v Roosevelt Island Operating Corp., 2000 WL 1277337, *4 [SD NY, Sept. 8, 2000], No. 97-cv-0761 [NRB]). But this is a separate question from whether the Legislature has provided for jurisdiction over RIOC in the Court of Claims. As the Court of Appeals has noted in a case involving the New York State Thruway Authority, a public benefit corporation may be "an arm or agency of the State" in the sense that the State Constitution does not prohibit the Legislature from placing jurisdiction over claims against it in the Court of Claims, but that is "different from saying it is the State" (Matter of Plumbing, Heating, Piping & A.C. Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420, 424 [1959] [internal quotation marks omitted] [emphasis in original]). Public benefit corporations perform a governmental function, and they have a "close relationship" with the State, but they nevertheless "stand[ ] on [their] own feet" (id. at 424). Thus, although the Legislature may allow claims against a public benefit corporation to be brought in the Court of Claims and has done so for a few such corporations (see e.g. Public Authorities Law § 361-b [New York State Thruway Authority]; id. § 2622 [4] [Olympic Regional Development Authority]; id. § 3567 [6] [Roswell Park Cancer Institute]), the grant of jurisdiction must be expressly made (see Easley v New York State Thruway Auth., 1 NY2d 374 [1956] [holding that Legislature may provide for jurisdiction over the Thruway Authority in the Court of Claims]). In the case of RIOC, it was not.

Turning to the cause of action itself, Civil Service Law § 75-b (2) (a) prohibits "public employer[s]" from taking retaliatory personnel action against "public employee[s]." Public benefit corporations, like RIOC, are included within the definition of "public employer" and, notably, are separately delineated from the State (Civil Service Law § 75-b [1] [a]). According to the amended claim, claimant's employer was RIOC. To that end, the amended claim alleges that claimant was the President and CEO of RIOC, and seeks, among other relief, "reinstatement of her employment with RIOC" (Amended Claim, ¶ 59 [emphasis added]). It is not alleged anywhere in the claim that claimant was a state employee.⁶ Thus, although the State is nominally a defendant with respect to this cause of action, claimant's former public employer, RIOC, is the real party in interest (cf. Morell v Balasubramanian, 70 NY2d 297, 300 [1987] [holding that jurisdiction lies in the Court of Claims where the State is the real party in interest]). The Court therefore lacks jurisdiction over the cause of action brought under Civil Service Law § 75-b. Such cause of action must be brought against RIOC in Supreme Court.

Claimant further argues in her supplemental memorandum that Civil Service Law § 75-b permits any public employee to bring a cause of action against any public employer, even if there is no employer-employee relationship between the two parties. Claimant cites no authority in support of this construction of the statute, and the Court rejects it. In the context of whistleblower claims brought against private employers under Labor Law § 740, appellate courts have held that no cause of action lies where no employer-employee relationship exists between the plaintiff and the defendant (see Freese v Willa, 89 AD3d 795, 796 [2d Dept 2011], abrogated in part on other grounds, Webb-Weber v Community Action for Human Servs., Inc., 23 NY3d 448 [2014];⁷ Salimi v New York Methodist Hosp., 45 AD3d 559, 560 [2d Dept 2007]). Claimant does not point to any differences in the statutory language which would compel a contrary result in the context of Civil Service Law § 75-b claims. In fact, where, as here, a public employee is an at-will employee, the Civil Service Law incorporates the procedures for the commencement of actions and the remedies provided under Labor Law § 740 (see Civil Service Law § 75-b [3] [c]; Labor Law § 740 [4], [5]; Hanley, 182 AD2d at 321). The remedies available under the Labor Law, including equitable remedies such as reinstatement, lost wages, and restoration of benefits, were plainly intended to run against the whistleblower's employer (see Labor Law § 740 [5]; Scaduto v Restaurant Assoc. Indus., 180 AD2d 458, 459 [1st Dept 1992] ["Labor Law § 740 (5) contains specific remedies available to an employee when [the employee] has been made the victim of retaliation by [the] employer"]).

Moreover, Civil Service Law § 75-b [2] [a] necessarily contemplates that the entity sued by the employee has the power to "dismiss or take other disciplinary or other adverse personnel action" against that employee. There is seemingly no legal basis for the State or its agents to terminate an employee of RIOC. As noted above, RIOC's enabling legislation provides that RIOC—not the State—has the power to appoint officers, agents, and employees; prescribe their duties; and fix their compensation (see Public Authorities Law § 2799-dddd [7]). In addition, RIOC's bylaws state that the RIOC Board has the authority to appoint and to dismiss officers of the corporation, including the President and CEO (see By-Laws of [RIOC], article IV, § 3 [amended March 25, 2010], available at https://rioc.ny.gov/DocumentCenter/View/69/By-Laws-PDF).⁸ No comparable authority is granted to the State or its agents with respect to RIOC officers and employees.⁹ Claimant acknowledged as much at oral argument, noting that the "normal procedure[ ]" for termination of an individual in claimant's position requires a decision from the RIOC Board (Oral Argument Tr., at 33). If, in effect, members of the Cuomo administration acted ultra vires in their efforts to terminate claimant, this would not make the State claimant's "de facto" employer as claimant argues (id. at 32). It would mean only that individual state actors exceeded their authority or took action that was legally void. Although some other remedy might be available in that situation (see e.g. CPLR 7803 [2]; CPLR 3001), the remedy is not for this Court to deem claimant a state employee for no purpose other than to secure jurisdiction over this claim. To do so would severely undermine the Legislature's decision to make RIOC an "independent and autonomous" entity, "deliberately designed to be able to function with a freedom and flexibility not permitted to an ordinary [s]tate board, department or commission" (Matter of Plumbing, Heating, Piping & A.C. Contrs. Assn., 5 NY2d at 423).

Indeed, the violations of Civil Service Law § 75-b alleged in the claim would still not be attributable to the State even if, hypothetically, the enabling statute or the bylaws granted members of the Governor's staff some authority over RIOC employees. In that scenario, personnel action taken by a member of the Governor's staff against claimant would be taken on behalf of and attributable to RIOC, not the State (see generally Lewis, 246 F Supp 3d at 987 [noting that members of the state government designated as directors of RIOC Board serve in that capacity "ex officio"]). Notably, the claim itself alleges that the Governor's staff members who purportedly terminated claimant were her "supervisors" in the context of "her employment with RIOC," not as officers of the State (Amended Claim, ¶ 55).

Finally, claimant points out that state officials and attorneys took a position contrary to the one now advanced in defendant's supplemental memorandum with respect to claimant's employment status and as to the question of whether jurisdiction exists in this Court. She notes, for example, that counsel to former Governor Cuomo asserted in an affirmation that RIOC employees are "treated as State employees" and that the Governor's Executive Chamber exercises "executive authority over RIOC's management" (Cl's Supplemental Mem in Supp, at 13, quoting Affirm of Kumiki Gibson, Index No. 158795/2020, NYSCEF Doc. No. 34, ¶ 3). These assertions are seemingly unsupported by any statute, regulation, rule, or contractual provision, and they are at odds with RIOC's enabling legislation and bylaws. Moreover, in the Supreme Court plenary action, RIOC (represented by private counsel) and the Office of the Attorney General both erroneously argued that claims against RIOC should have been brought in this Court (see RIOC's Mem of Law in Supp, Index No. 154096/2021, NYSCEF Doc No. 44, at 3; Oral Argument Tr., Index No. 154096/2021, NYSCEF Doc. No. 75, at 34-35). Of course, claimant has changed her position during the course of litigation too—she previously argued in her papers in the Supreme Court plenary action that her whistleblower claim was properly brought in Supreme Court against RIOC. There, in opposing the motions of the State and RIOC to dismiss the whistleblower claim on jurisdictional grounds, claimant asserted that RIOC "should not be considered a [s]tate body"; claimant only alternatively argued that if the State's motion was granted, the dismissal should be without prejudice to claimant's filing a new action in the Court of Claims (Amended Mem of Law in Opp to Mot, Index No. 154096/2021, NYSCEF Doc. No. 64, at 11; see id. at 11-13). At oral argument, when the court seemed inclined to dismiss all causes of action but the discrimination claim based on the apparent agreement of the parties' attorneys regarding jurisdiction, claimant again asked for a dismissal without prejudice as to those remaining causes of action, including the whistleblower claim (see Oral Argument Tr., Index No. 154096/2021, NYSCEF Doc. No. 75, at 33). Claimant now asserts that dismissal in this Court will leave her without a remedy but, in fact, she could have objected to the dismissal of the whistleblower claim against RIOC in Supreme Court, which would have preserved the issue for appeal. Put simply, jurisdiction cannot be established in the Court of Claims based upon concessions made by counsel in an earlier proceeding or conferred by the agreement of the parties. Indeed, it is well settled that "the State as sovereign may not be sued except with its consent, that it may attach such terms and conditions to its consent as the Legislature deems proper, and that such terms and conditions are jurisdictional requirements" (Finnerty, 75 NY2d at 723). The requirements at issue here cannot be waived (see id.; Erie Blvd. Hydropower, 90 AD3d at 1293).¹⁰

II. Other Causes of Action

Claimant's remaining causes of action allege injuries caused by state officials acting in their official capacities, and do not require that the State be claimant's employer for liability to exist. Thus, the jurisdictional issue that exists with respect to the whistleblower claim—where RIOC is the real party in interest—does not affect these remaining claims. Nevertheless, those claims must also be dismissed.

A. Defamation

Defendant argues, as it did with respect to the whistleblower claim, that the defamation claim is untimely because the Supreme Court plenary action was not brought within 90 days of the running of the statute of limitations. Claimant does not dispute that a defamation claim, unlike a whistleblower claim, is generally subject to the 90-day limitations period of CCA § 10 (3-b) for intentional torts. However, she argues that the verified petition in the article 78 proceeding before Justice Engoron constituted a valid notice of intention to file a claim, service of which extended the time to bring the claim to one year (see CCA § 10 [3-b]). Claimant thus contends that, because the Supreme Court plenary action was brought within that one-year period, the instant claim was timely commenced by operation of CPLR 205 (a). As noted above, defendant does not generally dispute the applicability of CPLR 205 (a) here; however, defendant argued at oral argument that the article 78 petition did not constitute a valid notice of intention. Claimant acknowledges that her argument on timeliness hinges on the Court construing the verified petition as a notice of intention (see Cl's Mem in Opp, at 5).

Defendant is correct that the article 78 petition did not constitute a valid notice of intention to file a claim (see Eastland Constr. v State of New York, UID No. 2011-015-282 [Ct Cl, Dec. 12, 2011] [Collins, J.]). Although the petition recites the basic facts underlying the defamation cause of action, it contains no information from which one could infer an intention to bring a claim for defamation against the State of New York in a future action in the Court of Claims. Indeed, the petition does not state that claimant would seek to hold the State liable for any tort damages; instead, it states only that claimant sought a judgment pursuant to article 78 providing for reinstatement to her position at RIOC, back pay, and attorneys' fees (see Index No. 158795/2020, NYSCEF Doc. No. 1, ¶ 51). Thus, the petition did not—as a notice of intention must—"adequately apprise defendant of the possibility" that an action for defamation would be asserted against it (Czynski v State of New York, 53 AD3d 881, 883 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; see also Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003] [notice of intention must "at least set forth the general nature of the claim so as to give some indication of the manner in which the claimant was injured and how [defendant] was negligent" (internal quotation marks and citation omitted)]). Contrary to claimant's contention, the petition's cursory remark that the respondents in that proceeding "slander[ed]" claimant in the New York Post cannot reasonably be construed as an indication of claimant's intention to bring a defamation claim against the State in this Court (Index No. 158795/2020, NYSCEF Doc. No. 1, ¶ 45).

The Court rejects the assertion in claimant's supplemental memorandum that defendant waived any challenge to the purported notice of intention because defendant first raised such issue at oral argument rather than in a reply brief. Court of Claims Act § 11 (c) states that any "objection or defense" based on, among other things, failure to comply with "the time limitations contained in [CCA § 10]," is "waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading." Here, defendant satisfied CCA § 11 (c) by raising the relevant defense in its pre-answer motions, namely, that the cause of action for defamation was not timely brought within 90 days of the accrual of the claim under CCA § 10 (3-b). Claimant's contention that the cause of action is timely because the article 78 petition can be construed as a notice of intention is merely an argument in opposition to defendant's motion. CCA § 11 (c) does not require that the Court blindly adopt any argument made by claimant unless defendant rebuts it in a reply brief.

B. State Constitutional Tort

As an initial matter, the second cause of action alleging a state constitutional tort also appears to be subject to a 90-day statute of limitations under CCA § 10 (3) (see Cumberland v State of New York, UID No. 2021-015-116 [Ct Cl, Dec. 22, 2021] [Collins, J.], affd 217 AD3d 1029 [3d Dept 2023]), thus rendering it untimely for the same reasons as the defamation claim. However, because defendant has failed to raise that argument, the cause of action may not be dismissed on that ground (see CCA § 11 [c]).

Instead, defendant argues that the second cause of action must be dismissed because claimant has an adequate alternative remedy, namely, a CPLR article 78 proceeding to annul the determination terminating her employment. Claimant responds that defendant has mischaracterized her claim. She explains that her due process claim is one for "stigma plus," i.e., that defendant "made public, stigmatizing comments" about her in the New York Post article which called into question her "good name, reputation, honor, or integrity" and that such statements "were made concurrently with, or in close temporal relationship to, [claimant's] dismissal from government employment" (Cl's Mem in Opp, at 13 [internal quotation marks omitted]). Claimant argues she was entitled to "a pre- or post-termination hearing so that she could demonstrate the falsity of the defamatory statements" (id. at 14).

It is well-settled that money damages for the violation of a State constitutional right is a "narrow remedy" that lies only when the injured party has no alternative legal remedy to enforce the right at issue (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001] [internal quotation omitted]; see Oppenheimer v State of New York, 152 AD3d 1006, 1008-1009 [3d Dept 2017], citing Deleon v State of New York, 64 AD3d 840, 840 [3d Dept 2009], lv denied 13 NY3d 712 [2009]). Despite defendant's apparent failure to recognize that the claim sounds in the nature of "stigma-plus," defendant is nevertheless correct that the cause of action must be dismissed because there are several alternative legal remedies that claimant had to enforce her constitutional rights. As claimant agrees (see Cl's Mem in Opp, at 15), a name-clearing hearing may generally be pursued in a CPLR article 78 proceeding where the petitioner demonstrates "governmental defamatory action" in conjunction with "loss of employment" (Matter of Swinton v Safir, 93 NY2d 758, 764 [1999]; cf. Matter of Lentile v Egan, 61 NY2d 874, 875 [1984]; see Matter of Green v New York City Police Dept., 235 AD2d 475, 476 [2d Dept 1997] [noting that request for a name-clearing hearing is subject to the four-month statute of limitations applicable to CPLR article 78 proceedings]). Thus, claimant had an adequate alternative remedy to the extent that she could have requested a name-clearing hearing in the article 78 proceeding she previously brought in connection with these events. Contrary to claimant's contention that the article 78 court "denied [her] the opportunity to clear her name" (Cl's Mem in Opp, at 14), the First Department observed that claimant in fact failed to request a name-clearing hearing (see Rosenthal, 221 AD3d at 552).

Moreover, an adequate alternate remedy also exists to the extent that "the alleged wrongs could have been redressed by . . . timely interposed common-law tort claims" (Lyles v State of New York, 2 AD3d 694, 695 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; see Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 914 [1998]; see also Williams v State of New York, 137 AD3d 1579, 1580 [4th Dept 2016], appeal dismissed & lv denied 28 NY3d 958 [2016]). In this case, claimant's constitutional tort cause of action is essentially duplicative of her common-law defamation claim, which could have been asserted in this Court had it been timely interposed. In addition, although claimant brings this cause of action under the State Constitution, she further contends that her claim is supported under the Federal Constitution (see Cl's Mem in Opp, at 14). Thus, another adequate alternative remedy available to claimant is to bring "a federal constitutional claim in federal court under 42 USC § 1983" (Oppenheimer, 152 AD3d at 1009). At oral argument, claimant's counsel confirmed that claimant has, in fact, elected to pursue that remedy after filing the present claim (see Oral Argument Tr., at 27; Rosenthal v Roosevelt Island Operating Corp., 23-cv-09660 [SD NY, filed Nov. 2, 2023] [motion to dismiss pending]).

In sum, inasmuch as none of claimant's causes of action are properly before this Court, it is hereby

ORDERED that defendant's motion to dismiss the original claim (M-99207) is DENIED as moot; and it is further

ORDERED that defendant's motion to dismiss the amended claim (M-99898) is GRANTED, and the claim and amended claim are DISMISSED in their entirety.

February 28, 2025

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

1. Claim, filed January 25, 2023;

2. Notice of Motion and Affirmation in Support of Motion to Dismiss Claim of Assistant Attorney General Anthony Rotondi, with Exhibits A-B, filed March 15, 2023;

3. Amended Claim, filed August 2, 2023;

4. Notice of Motion and Affirmation in Support of Motion to Dismiss Amended Claim of Assistant Attorney General Anthony Rotondi, with Exhibits A-E, filed September 8, 2023;

5. Claimant's Memorandum of Law in Opposition to Motion to Dismiss Amended Claim, filed November 7, 2023.

6. Oral Argument Transcript, dated June 26, 2024;

7. Supplemental Memorandum of Law in Support of Motions, filed August 15, 2024; and

8. Supplemental Memorandum of Law in Opposition to Defendants' Motions to Dismiss, filed September 30, 2024.

FOOTNOTES

1.   The caption has been amended sua sponte to reflect the only properly named defendant in this action. Claimant conceded at oral argument that the individual defendants were not properly named.

2.   Each of these officials is alleged to have departed state service upon the resignation of Governor Cuomo.

3.   The unreported cases cited by defendant in support of a 90-day statute of limitations either pre-date the more recent appellate cases concluding that Civil Service Law § 75-b actions are not tort claims, or do not take them into account and rely solely on the earlier cases.

4.   After oral argument, the parties were directed to brief the following questions in connection with the motions to dismiss: (1) whether CPLR 205 (a) applies to extend the time to commence an action in this Court when the prior action was instituted in Supreme Court; (2) assuming that CPLR 205 (a) applies here, whether the Supreme Court plenary action was timely commenced, taking into consideration the COVID toll; (3) whether RIOC or the State was claimant's employer for purposes of the whistleblower cause of action and, if it is RIOC, whether the Court would have jurisdiction to entertain that cause of action; and (4) whether the doctrine of res judicata has any applicability here.

5.   The fact that RIOC is also defined as a political subdivision of the State (see Public Authorities Law § 2799-cccc) does not mean it is the State for purposes of this Court's jurisdiction. Municipal corporations such as cities, towns, and counties are also classified as political subdivisions of the State (see Matter of Town of Montauk, Inc. v Pataki, 40 AD3d 772, 773 [2d Dept 2007]), and this Court lacks jurisdiction over those entities (see e.g. Fisher v State of New York, 10 NY2d 60, 61 [1961]; Mooraty v State of New York, 73 Misc 3d 1238[A] [Ct Cl 2021]).

6.   The claim alleges that the improperly named individual defendants, who appear to be state officers, were claimant's "supervisors" because they "had the authority to direct and control [c]laimant with respect to her employment with RIOC" (Amended Claim, ¶ 55). This is legally irrelevant, however, because the term "supervisor" is seemingly used only in Labor Law § 740 and does not appear in Civil Service Law § 75-b. In any event, the amended claim describes the individuals as "supervisors" in relation to "[claimant's] employment with RIOC," not the State (id.).

7.   The Court in Freese dismissed the plaintiff's Labor Law § 740 claim against one defendant on the ground that the plaintiff failed to plead a violation of a specific law, rule or regulation (see 89 AD3d at 796). However, the Court of Appeals later held that it is not necessary to plead such a violation in order to state a cause of action under Labor Law § 740 (see Webb-Weber, 23 NY3d at 452). The Court of Appeals decision does not impact the portion of the holding in Freese dismissing claims against certain defendants due to the lack of an employer-employee relationship.

8.   The Court may take judicial notice of "material derived from official government [websites]" (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2d Dept 2009]).

9.   To be sure, the Governor has the authority to appoint seven of the nine members of the RIOC Board, and the two other members are, by law, the Commissioner of Homes and Community Renewal and the Director of the Budget (see Public Authorities Law § 2799-cccc [2]). But it is not unusual for the Legislature to vest the Governor with authority to appoint directors of public corporations even though such corporations enjoy a degree of independence from the State (see e.g. Public Authorities Law § 352 [providing that Governor appoints members of the Thruway Authority board]; id. § 2608 [Governor appoints 9 of 12 members of the Olympic Regional Development Authority board]; id. § 3553 [1] [b] [appointment power for directors of the Roswell Park Cancer Institute Corporation shared between Governor and leadership in the Senate and Assembly]). The Governor has no statutory authority over officers and employees of RIOC.

10.   Given the existence of this fundamental jurisdictional defect, the Court need not reach defendant's alternative argument that the whistleblower cause of action should be dismissed under the doctrine of collateral estoppel based upon Justice Engoron's conclusion in the article 78 proceeding that claimant's termination was not arbitrary or capricious. However, the Court would nevertheless reject the argument because the article 78 proceeding was limited to claimant's assertions that she was terminated on account of her race; the issues regarding the Roosevelt Island steam tunnels and alleged retaliation for whistleblowing were not raised in the petition. Thus, although the Appellate Division previously held that claimant was collaterally estopped from "asserting [the] claims of discrimination" that were raised in her petition (Rosenthal, 221 AD3d at 551), the same is not true with respect to the Civil Service Law § 75-b claim which was neither litigated nor resolved in the article 78 proceeding (see Russell v New York Univ., 42 NY3d 377, 384 [2024]; Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]). And defendant concedes that the broader doctrine of res judicata is not applicable here (see Def's Supplemental Mem in Supp, at 7).

Zainab A. Chaudhry, J.