nys court of claims decision 9-13-2013.pdf

8/14/2019 NYS Court of Claims decision 9-13-2013.pdf

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STATE OF N W YORK COURT OF CLAIMS

JEFFREY MALKAN,

Claimant,

-v-

STATE OF N W YORK (STATEUNIVERSITY OF NEW YORK ATBUFFALO),

Defendant.

DreiS/ON NO.

n O R f Y ~

FILE NO. _DATE REC O

DECISION ANDORDER

Claim Nos.

Motion Nos.

116355117676

M-82149M-82351

FILEDSEP Oe 2 13

STATE COURT OF ClAIMS

BEFORE:

APPEARANCES:

ALBANY NYHON. JEREMIAH J. MORIARTY IIIActing Judge of th Court of Claims

For Claimant:By: Marilyn Raskin-Ortiz, Esq.

James R Sandner, Esq.Richard E. Casagrande, Esq.

For Defendant:Hon. Eric T. SchneidermanNew York State Attorney GeneralBy: Wendy E Morcio

Assistant Attorney General

The following were read and considered with respect to Defendant s Motion No. M-82149

for summary judgment with respect to Claim No. 116355 the first claim):

1 Defendant s Notice o Motion and Affidavit o Assistant Attorney General WendyMorcio sworn to September 7, 2012, with annexed Exhibits A-B;

2. Opposing Affidavit o Marilyn Raskin-Ortiz, Esq. sworn to November 12, 2012;

3. Claimant s Opposing Memorandum o Law dated November 12, 2012;


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Claim Nos. 116355 117676 Motion Nos. M-82149 M-82351 Page 2

4. RepJy Affidavit of Assistant Attorney General Wendy E. Morcio sworn to November15,2012.

Filed papers: Claim No. 116355 filed January 28,2009; Answer filed March 9,2009.

The following were read and considered with respect to Defendant s Motion No. M-82351

for summary judgment with respect to Claim No. 117676 (the second claim):

1. Defendant s Notice of Motion dated October 25, 2012 and Affidavit of AssistantAttorney General Wendy E Morcio sworn to October 26, 2012, with annexed Exhibits A-E;

Opposing Affidavit of Marilyn Raskin-Ortiz, Esq. sworn to December 7,2012, withannexed Exhibit A;

3. Opposing Affidavit of Tara Singer-Blumberg sworn to December 7, 2012;

4. Claimant s Opposing Memorandum of Law dated December 7 2012;

5. Reply Affidavit of Assistant Attorney General Wendy Morcio sworn to December11 2012 with annexed Exhibits 0-1. 1

Filed papers: Claim No. 117676 filed November 13,2009; Answer filed December 9,2009.

Procedural History

On January 28, 2009, Claimant, Jeffrey Malkan, filed his first claim, Claim No. 116355, in

which he alleged that on October 19, 2006, he entered into a written contract of employment with

the State University of New York at Buffalo Law School (StTNY Buffalo Law School). Claimant

further alleged that Defendant breached the contract of employment when it terminated Claimant s

employment as a member of 1 t1 e SUNY Buffalo Law School faculty, and that this claim arose upon

receipt, on or about August 30, 2008, of a letter dated August 28, 2008 advising Claimant that his

1 On December 13 2012, the same day the Court of Claims received and filed Defendant s reply affidavit; theCourt received a letter from Assistant Attorney General Morcio including pages 22 and 23 of the decision of theAdministrative Law Judge with respect to the improper practice charge filed with the Public Employment RelationsBoard (PERB). These two pages were accidentally omitted from the PERB decision attached to Assistant AttorneyGeneral Morcio s reply affidavit as Exhibit G. Pages 22 and 23 have been incorporated into Defendant s Exhibit G.


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Claim Nos 116355 117676 Motion Nos. M-82149 M-82351 Page 3

employment would end. On March 9, 2009, Defendant filed its answer to Claim No. 116355 in

which it alleged, among others, that this Court lacked jurisdiction as Claimant failed to comply with

Court of Claims Act 11 (b) in that the total sum claimed was not set forth in the claim (Answer to

Claim No. 116355, first defense, Motion No. M-82149, Defendant s Exhibit B).

On November 13, 2009, Claimant filed a second claim, Claim No. 117676, in which he

alleged that Defendant breached the same written contract by terminating his employment as a

member of the faculty of SUNY Buffalo Law School. Attache-d to Claimant s secona claim as

attachment A was a copy of a letter dated October 19, 2006 which Claimant alleges is the basis of

his breach of contract claim. Unlike the first claim, Claimant s second claim contained a total sum

for each item of damage. Also attached to the second claim as attachment B was a list of damages

or injuries with a monetary amount listed for each item. On December 9, 2009, Defendant filed its

answer to the second claim, Claim No. 117676 in which it alleged, among others, that this Court did

not have jurisdict ion as the second claim was untimely filed and served in derogation of section 1

(4) of the Court of Claims Act (Answer to Claim No. 117676, seventh affirmative defense, Motion

No. M-82351, Defendant s Exhibit B) .

y notice of motion dated September 7, 2012, Defendant brought Motion No. M-82149 for

summary judgment to dismiss Claimant s first claim, Claim No. 116355, alleging that Claimant

failed to compiy with section 11 (b) of the Court of Claims Act by failing to allege the total amount

claimed. I t was ultimately agreed by the parties that Motion No. M -82149 would be submitted to the

Court for decision without oral argument. y notice of motion dated October 25,2012, Defendant

brought Motion No. M -82351 for summary judgment to dismiss Claimant s second claim, Claim No.

117676, alleging that the second claim was jurisdictionally defective. Oral argument was heard y


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Claim Nos. 116355 117676 Motion Nos M-82149 M-82351 Page 4

the Court with respect to Motion No. M-82351 only. Because both claims arise out of the same

written contract of employment and because both motions address, to some degree, similar issues,

the Court has decided to write one decision addressing both motions.

Defendant's Motion No. M-82149 for Summary Judgment to Dismiss Claim No. 116355

Defendant brought Motion No. M-82149 for summary judgment dismissing Claim No.

116355 as the claim failed to state a sum certain in derogation of section 11 (b) of the Court of

Claims Act. Pursuant to Court of Claims Act 11 (b),

"The claim shall state the time when and place where such claim arose, thenature of same, the items of damage or injuries claimed to have beensustained and, except in an action to recover damages for personal injury,medical, dental or podiatric malpractice or VvTongfu1 death, the total sumclaimed."

Strict compliance with the substantive conditions set forth in section 11 (b) of the Court of Claims

Act is required as a condition to the State's waiver of its sovereign immunity, and the failure to

satisfy any of these requirements constitutes a jurisdictional defect Kolnacki v State o New York,

8 NY3d 277 [2007J, rearg denied 8 NY3d 994 [2007J; Lepkowski v State o New York, 1 NY3d 201

[2003 D The failure to state the total sum claimed in a breach of contract claim, which is not one of

the claims exempted from the total sum requirement set forth in section 11 b) as amended (L 2007,

ch 606), constitutes a jurisdictional defect requiring dismissal of the claim see Friedman v State o

New York, UID No. 2007-044-563 [Ct Cl, Schaewe, J., Aug. 23, 2007]).2

In the claim, it was alleged that the total sum could not be calculated, but that the total sum

would equal the value of the salary and benefits lost. In opposition to Defendant's motion, Claimant

2 This and other unreported Court of Claims d e i s i ~ n smay be found on the Court's web site atwww.nyscowiofclauDS.state.ny.us .
http:///reader/full/www.nyscowiofclauDS.state.ny.ushttp:///reader/full/www.nyscowiofclauDS.state.ny.us


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argued that these allegations were sufficient under Eastland Construction, Inc v State New York,

UID No., 2012-015-346 [Ct CI, Collins, J., June 26,2012]), as section b) ofthe Court of Claims

Act merely requires that a claim provide enough detail to enable the Defendant to investigate and

ascertain the extent of its liability. In Eastland, however, Defendant was arguing that the breach of

the cons truction contract claim was jurisdictionally defective because it provided only examples of

the damages claimed. The urisdictional requirement that the claim contain the total sum claimed was

not even discussed in Eastland. Moreover, about six months earlier when the same Claimant moved

for permission to late file its breach of a,construction contract claim see Eastland Construction, Inc.

v State New York, UID No. 2011-015-282 [Ct CI, Collins, 1., Dec. 12,2011] , Judge Collins

mentioned in hi s decision granting permission to late file, the original contract price and the exact

amount of damages claimed. Pr esumably the contract price and the total amount of damages claimed

were included in the proposed claim Judge Collins considered in his earlier Eastland decision. Thus,

neither Eastland decision is relevant herein.

More importantly, contrary to his argument, Claimant should have been able to calculate his

damages in the first claim, Claim No. 116355. In fact, in his second claim, Claim No. 117676,

Claimant se t forth a total sum claimed and included, as attachment B, an itemized list of each item

of damage, establishing his ability to calculate damages. Moreover, the Court of Claims docs not

requirethe

Stateof New

York to ferretout

infoID1ation likethe

total sum claimed that is reauired. .by section b) of the Court of Claims Act Lepkowski v State New York, 1 NY3d at 208).

Finally, Claimant argues that should the Court conclude that the claim is jurisdictionally

deficient for failing to include the total sum claimed that the claim should be considered as a

suffi ient noti e intention to a claim in lieu of a claim. No motion or cross motion for such


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Claim Nos. 116355,117676, Motion Nos. M-82149, M-82351 Page 6

rel ief is before the Court. Moreover , while section 1 (8) (a) of the Court of Claims Act provides that

in certain circumstances a Claimant may apply to the Court for permission to treat a notice of

intention as a claim, there is no equivalent section of the Court of Claims Act permitting the Court

to treat a claim as a notice of intention. t further appears that Claimant always intended Claim No.

116355 to be a claim as he designated it a claim and not a notice of intention and filed and served

the claim 3 see Abbott s Big M Inc. v State o New York, UID No. 2007-009-045 [Ct Cl, Midey, Jr.,

J., Dec. 20, 2007]).

The failure to include the total sum claimed in the first claim, Claim No. 116355 constitutes

a jurisdictional defect requiring dismissal of the claim Id.).

Defendant s Motion No. M-82351 for Summary Judgment to dismiss Claim No. 117676

Defendant brought Motion No M-82351 for summary judgment to dismiss Claim No.

117676 on the grounds that the claim was untimely served, failed to comply with Court of Claims

Act 11, is conclusory in nature, and on the grounds that the grievance procedure afforded by the

collective bargaining agreement is the exclusive remedy and/or that the breach ofthe letter contract

should be brought in an Article 78 proceeding in State Supreme Court. Before the Court can address

the gravamen of the Claim, the Court must determine whether the claim itse lf is in proper form to

obtain the Court's jurisdiction see generally Mujica v State o New York, UID No. 2003-028-530

r' 't C

Sl'seT 1 ) 03J) v

1 , J . , J \ J J l . . l . v

, Defendant argues that Claimant untimely served and filed his second claim, Claim No.

117676. This affirmative defense was raised with particularity in Defendant 's answer in compliance

3 A notice of intention to file a claim is no longerrequired to be filed with the Court of Claims (Court of ClaimsAct to [4J; L 1995, ch466).


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Claim Nos. 116355 117676 Motion Nos M-82149 M-82351 Page 7

with section 11 (c ) of the Court of Claims Act (Answer to Claim 117676, seventh affirmative

defense, Motion No. M-8235I, Defendant's Exhibit B). The State's waiver of sovereign immunity

is conditioned upon Claimant's compliance with the filing and service requirements of the Court of

Claims Act Alston v State New York, 97 NY2d 159 [2001 D The failure to comply with these

requirements is ajurisdictional defect compelling the dismissal ofthe claim Ivy v State New York,

27 D 3d 1190 [4th Dept 2006]).

Court of Claims Act 10 (4) provides that:

[a] claim for breach of contract, express or implied, and any other claim nototherwise provided for by this section, over which jurisdiction has beenconferred upon the court of claims, shall be filed and served upon theattorney general within six months after the accrual of such claim

In order to determine if the second claim was timely filed and served, the Court must first address

the issue of the accrual date. Like the first claim, Claimant in his second claim is seeking the salary

and benefits he allegedly lost as a result of a breach of a written letter contract dated October 19,

2006 (Claim No. 117676, attachment A, Motion No. M-8235l, Defendant's Exhibit A). I t is further

alleged in the second claim that Claimant was notified by letter dated August 28, 2008 t ~ a tr.,is

appointment as a professor at the law school would end on August 31,2009, and that his last day of

work would be May 15,2009. Nowhere in the second claim, Claim No. 117676 does Claimant allege

an accrual date. Claimat 1t notes, however, that the claim states that Claimant's employment was

terminated effective August 31, 2009 (Claim No. 117676, 3, Motion No. M-82351 , Defendant's

Exhibit A), and argues that August 31, 2009 should be the accrual date as Claimant lost no salary

. or benefits until his employment ended.


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laim Nos. 116355 117676 Motion Nos. M-82149 M-82351 Page 8

A claim for breach of contract accrues when damages are reasonably ascertainable Richard

A. Hutchens CC L.L.C v State o f New York 59 AD3d 766 [3d Dept 2009], Iv denied 12 NY3d 712

[2009]; Greenspan Bros. v State o f New York, 122 AD.2d 249 [2d Dept 1986]). Applying this

principle, the Court of Claims in Syrkin v State o f New York, UID No. 2006-030-524 [Ct CI,

Scuccimarra , 1., Apr. 5,2006]) held that the claim accrued when notice was given that the Claimant

therein would not lJe reappointed as an Assistant Professor in the Sc ience Department of the State

University o f New York Maritime College and not when his current term expired. While Claimant

rightly notes that the claim in Syrkin was for discrimination and not for breach of contract, Judge

Scuccimarra made it clear in his decision that in setting the accrual at when notice ofterrnination was

received and not when employment ended, he was applying the principle that a claim accrues when

damages are reasonably ascertainable Syrkin v State o f New York, at p.4.).

Moreover, it appears that Claimant, initially at least, agreed that the accrual date should be

when Claimant received notice that he would not be reappointed. In his first claim, Claim No.

116355, Claima..tJ .t alleged [t]he claim for a breach ofthis contract [the same letter contract dated

October 19, 2006] arose upon the receipt, on or about August 30, 2008, of a letter dated August 28,

2008, to Claimant from the Dean of the Law School advising Claimant that his employment would

end (Claim No. 116355, 3, Motion No. M-82149, Defendant's Exhibit A). Claimant filed his first

claim on Ja.t1UfuY 28,2009, eight months before he now argues his second claim for the same relief

accrued.

Contrary to his argument, Claimant's alleged damages for breach of the letter contract of

October 19, 2006 were reasonably ascertainable in August 2008 when he received notice that his

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letter contract .dated October 19, 2006. Claimant did not have to wait until his last day o

employment to reasonably calculate his damages. The Court concludes that Claimant s second

breach o contract claim, Claim No. 117676 accrued on August 30,2008 when Claimant received

notice that his employment would end. Because the second claim was filed and served more than six

months after his claim accrued, it is untimely and must be dismissed. In view o the fact that

Claimant s second claim, Claim No. 117676 is dismissed on jurisdictional grounds, Defendant s

remaining grounds for dismissal o this claim have not been considered at this time.

Finally, in the event that Defendant s motion for dismissal o the second claim, Claim No.

117676 is granted, Claimant requests that he be permitted to seek leave to amend the claim.

Unfortunately, no such relief is available. First, there is no motion or cross motion pending for

permission to amend either the first or the second claim. More importantly,. a jurisdictionally

defective claim may not be cured through an amendment (Hogan v State a/New York, 59 AD3d 754

[3d Dept 2009]); 0 Kane v State o New York, UID No. 2013-040-017 [Ct Cl, McCarthy, J., Mar.

2013)).

Based on the foregoing, it is hereby

ORDERED,that Defendant s Motion No. M-82149 is granted and Claim No. 116355 is

dismissed; and it is further

ORDER..r:D that Defendlli 1t s Motion No. M-82351 is granted and Clahl1 No. 117676 is .

dismissed


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