Clancy v. State, 69288

• Decision Date: 28 September 1984
• Docket Number: No. 69288,69288
• Citation: 481 N.Y.S.2d 943,126 Misc.2d 292
• Parties: , 40 Empl. Prac. Dec. P 36,236 Josephine CLANCY, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 943

481 N.Y.S.2d 943

126 Misc.2d 292, 40 Empl. Prac. Dec. P 36,236

Josephine CLANCY, Claimant, v. The STATE of New York, Defendant.

Claim No. 69288.

Court of Claims of New York.

Sept. 28, 1984.

Parisi, DeLorenzo, Gordon, Pasquariello & Weiskopf, P.C., Schenectady (Edward D. Falso, Schenectady, of counsel), for claimant.

Robert Abrams, Atty. Gen. of the State of New York, Albany (Dennis M. Acton Asst. Atty. Gen., Albany, of counsel), for defendant.

MEMORANDUM-DECISION and ORDER

HAROLD E. KOREMAN, Presiding Judge.

Claimant, a former State employee, was injured in the course of her employment in July of 1975. At that time she filed for and received Worker's Compensation benefits. Claimant subsequently returned to work but beginning in 1981 and continuing through January of 1983 she was at times absent from her employment, allegedly due to residual effects of the 1975 injury. Claimant's employment was ultimately terminated by the State on February 10, 1983 on the ground that she had been "absent due to illness continuously for one year" (see claimant's "Responding Affidavit" Exhibit A; see, also, Civil Service Law, § 73). Claimant now seeks to recover damages on the grounds that she was wrongfully discharged and subjected to emotional distress, and on the further basis that she was the victim of a discriminatory employment practice. Defendant seeks dismissal arguing that the claim fails to state a cause of action.

Addressing first claimant's allegations of a common-law cause of action for wrongful discharge, we would note that such action is not cognizable in New York (Murphy v. American Home Products Corp., 58 N.Y.2d 293, 300-301, 461 N.Y.S.2d 232, 448 N.E.2d 86); nor does claimant allege facts sufficient to constitute an action for intentional infliction of emotional distress by reason of malicious discharge (see, generally, Murphy v. American Home Products Corp., supra, p. 303, 461 N.Y.S.2d 232, 448 N.E.2d 86). Furthermore, a breach of contract action for lost wages may not be maintained since claimant has not obtained reinstatement to her former position via an Article 78 proceeding, a condition precedent to such an action against a public employer (Austin v. Board of Higher Education of City of New York, 5 N.Y.2d 430, 443-444, 186 N.Y.S.2d 1, 158 N.E.2d 681). Accordingly, the Court rejects each of the above theories of recovery.

Turning to the issue of discriminatory employment practice, claimant asserts a cause of action based on violations of the Worker's Compensation Law ( § 120), the Civil Service Law ( § 73), and the Executive Law ( § 296 ). As to the above-cited sections of the Worker's Compensation Law and the Civil Service Law, a reading of said statutes clearly indicates that neither provides a substantive cause of action. ¹ However, claimant's allegations that her employment was improperly terminated on the basis of a physical disability which does not impair her ability to work does set forth a violation of section 296 of the Executive Law, for which the Legislature has provided a "cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate"(Executive Law, § 297, subd. 9; Koerner v. State of New York, 62 N.Y.2d 442, 478 N.Y.S.2d 584, 467 N.E.2d 232; see, also, Murphy v. American Home Products Corp., 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 448 N.E.2d 86, supra). Moreover, such an action may be commenced against the State as an employer (Koerner v. State of New York, 62 N.Y.2d 442, 446, 478 N.Y.S.2d 584, 467 N.E.2d 232, supra; see, also, City of Schenectady v. State Division of Human Rights, 37 N.Y.2d 421, 373 N.Y.S.2d 59, 335 N.E.2d 290), and it is on the basis of said statute that we find that claimant has properly pleaded a cause of action upon which relief may be granted.

Parenthetically, it should be noted that in Koerner (supra) the Court of Appeals held that the State could be sued for money damages pursuant to the Human Rights Law in a forum other than the Court of Claims. While it did not expressly state that the Court of Claims was also a proper forum, ² such a holding is implicit in the Court's decision, especially in view of its pronouncement that the Human Rights Law is to be liberally construed for the accomplishment of its purpose ( Koerner v. State of New York, supra, 62 N.Y.2d at p. 449, 478 N.Y.S.2d at p. 584, 467 N.E.2d at p. 232). Moreover, since claimant herein is only seeking monetary damage against the State, and not attendant equitable relief, it is evident that the Court of Claims has concurrent jurisdiction over this statutorily created cause of action (Court of Claims Act, § 8; see, also, Koerner v. State of New York, supra, p....