Ferrer v. State

• Decision Date: 15 August 1996
• Docket Number: No. 93104,93104
• Parties: Norman FERRER, Claimant, v. STATE of New York, Defendant. 1 ClaimCourt of Claims of New York
• Court: New York Court of Claims

Page 900

655 N.Y.S.2d 900

172 Misc.2d 1

Norman FERRER, Claimant, v. STATE of New York, Defendant. ¹ Claim No. 93104.

Court of Claims of New York.

Aug. 15, 1996.

Dennis C. Vacco, Attorney General (Susan J. Pogoda, of counsel), for defendant.

Puerto Rican Legal Defense & Education Fund, Inc. (Kenneth Kimerling, of counsel), for claimant.

JAMES P. KING, Judge.

This action seeks recovery for damages alleged to have arisen when New York State Division of Human Rights (DHR) failed to resolve claimant's employment discrimination claim in a timely manner.

On December 22, 1982, shortly after being fired by his employer, Pepsi Cola Bottling Group (Pepsico), claimant filed a complaint with DHR charging Pepsico with discrimination on the basis of national origin and retaliation (Executive Law § 296 & 297). Two years later, in December 1984, DHR found probable cause to believe claimant's charges.

After three more years, DHR scheduled a pre-hearing conference for April 28, 1988 but, according to claimant, neither party was given notification. The conference was re-scheduled and then once again adjourned. Almost seven years after the charges were filed, in August 1989, there was an administrative hearing, and in February 1990, a proposed decision on the discrimination complaint was issued by the Administrative Law Judge.

In 1991, Pepsico brought a CPLR Article 78 proceeding to dismiss the DHR complaint because of undue delay and was successful in Supreme Court. The Second Department, while finding the delay "inexcusable" and "deplorable", held that Pepsico failed to prove that it suffered substantial prejudice (Matter of Pepsico, Inc. v. Rosa, 204 A.D.2d 552, 554, 612 N.Y.S.2d 74), and claimant's DHR proceeding was reinstated. However, there was another year of delay before an alternative decision was issued by the DHR Order Preparation Unit in 1992, and the Commissioner's final decision and order was not entered until March 12, 1993.

In that decision, Pepsico was found to have violated provisions of the Human Rights Law by retaliating against claimant for expressing opposition to what he perceived to be discriminatory company employment practices. DHR awarded claimant $115,245.50 in back pay, with 9 per cent interest to run from July 1, 1985, and $25,000 in compensatory damages for mental anguish (Ferrer v. Pepsi Cola Bottling Group, decision by DHR, March 12, 1993; claim, Exh. A).

In all, more than ten years had elapsed between December 1982, when Mr. Ferrer filed his complaint against Pepsico, and March 1993, when DHR issued a final decision on the claim. Throughout this process, Pepsico had raised objections and sought dismissal of the claim on the grounds of prejudicial delay. Appealing DHR's decision in favor of claimant, Pepsico renewed this argument.

This time the Second Department, hearing the appeal on transfer from Supreme Court, agreed with Pepsico. In its March 20, 1995 decision, which annulled DHR's determination and dismissed claimant's complaint, the court found "substantial prejudice" to Pepsico "due to this excessive delay" (Matter of Pepsico, Inc., v. Rosa, 213 A.D.2d 550, 551, 624 N.Y.S.2d 622, citing Corning Glass Works v. Ovsanik, 84 N.Y.2d 619, 620 N.Y.S.2d 771, 644 N.E.2d 1327). The court specifically attributed the delay to DHR, noted that "no explanation ... was provided", and referred to the unavailability of witnesses and lost documentary evidence. ² (Matter of Pepsico, Inc. v. Rosa, supra.)

Claimant and DHR appealed as of right to the Court of Appeals and also sought leave to appeal. On September 26, 1995, the Court of Appeals dismissed the appeal and denied the motion for leave to appeal. Subsequently, on December 18, 1995, claimant filed this claim against New York State and DHR based on 42 U.S.C. § 1983 and alleging that the delayed processing of his discrimination complaint violated his due process and equal protection rights under the federal and state constitutions.

Defendant now seeks summary judgment dismissing the claim on the grounds of untimeliness, lack of subject matter jurisdiction, and sovereign immunity. Claimant opposes defendant's motion and cross-moves for permission to amend his claim by adding a negligence cause of action and, if necessary, for permission to file a late claim.

Jurisdiction

It is well-established that no cause of action lies against the State of New York for alleged violations of an individual's rights secured by the United States Constitution (Matter of Thomas v. New York Temporary State Comm. on Regulation of Lobbying, 83 A.D.2d 723, 442 N.Y.S.2d 632, affd. 56 N.Y.2d 656, 451 N.Y.S.2d 708, 436 N.E.2d 1310). Further, because the State is not a "person" amenable to suit under 42 U.S.C. § 1983 (Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45), "the law is unequivocal that this section does not give rise to a cognizable claim against the State or a department thereof" (Davis v. State of New York, 124 A.D.2d 420, 423, 507 N.Y.S.2d 520). Thus, this Court lacks the jurisdiction to hear claimant's federal constitutional due process and equal protection claims, and, accordingly, they must be dismissed. ³

Less sharply defined, however, is the ability of the Court of Claims to hear actions based on alleged violations of state constitutional provisions. Few decisions have directly addressed the question of whether there exists a private right of action enabling claimants to pursue such claims in this Court. One that does is Brown v. State of New York (Claim No. 86979, Motion No. M-48150, filed 3/30/94, HANIFIN, J., affd 221 A.D.2d 681, 633 N.Y.S.2d 409, lv. granted 87 N.Y.2d 809, 642 N.Y.S.2d 195, 664 N.E.2d 1258). ⁴ In Brown, Judge Hanifin held, after thorough analysis, that the Court of Claims lacks jurisdiction to entertain claims against the State for damages based upon violations of the state constitution's equal protection and search and seizure provisions. "There is no direct constitutional tort remedy available with regard to New York State Constitution Article I, § 11" or § 12 (Ct.Cl., 3/30/94, slip op. at 26-27). He concluded that unless a civil remedy was provided by the State legislature, actions for money damages based on alleged violations of these provisions are not justiciable in the Court of Claims (Ct.Cl., 3/30/94, slip op. at p. 26).

The United States Supreme Court itself has spoken, albeit in a federal context, on the issue of when a private right of action exists for redress of alleged constitutional violations. The high Court held that a direct action for damages under the Constitution "can be maintained only where no other 'equally effective or adequate' remedy exists" (Lombard v. Board of Education of the City of New York, 784 F.Supp. 1029, 1034, quoting Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15; see also Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619). Where Congress has supplied a statutory mechanism by which the [constitutional] right in question could be vindicated, such as 42 U.S.C. § 1983, the statute must be the basis of any related cause of action for damages.

With respect to rights secured by a state constitution, "[s]everal jurisdictions have followed the approach used by the United States Supreme Court in the Bivens line of cases, and have based their decisions [regarding implied private rights of action] on the presence or absence of alternative remedial schemes" (City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 [Sup.Ct., Tex.] and cases cited therein; see also Lombard v. Board of Education of the City of New York, 784 F.Supp. 1029, supra ). Given that New York State provides no general statutory vehicle similar to 42 U.S.C. § 1983 for redress of state constitutional violations, the question before this court is whether a direct, private right of action exists under the due process and equal protection clauses of the New York State Constitution.

Recently, the Supreme Court of Vermont outlined a two-part test for determining whether direct actions for money damages based on violations of state constitutional rights are ever available (Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924 [VT] ). "First, we must determine whether the constitutional provisions are self-executing, that is, whether they support an action against the state or its agents without implementing legislation. Second, if we find a provision is self-executing, we must determine whether monetary damages are available as a remedy for a violation" (id., 163 Vt., at 222, 658 A.2d, at 927).

The Vermont court considered a number of criteria in determining whether to categorize two constitutional provisions as self-executing. ⁵ It ultimately concluded that a private right of action for money damages may be implied "where the Legislature has fashioned no other adequate remedial scheme" (Shields, supra, 163 Vt., at 234, 658 A.2d, at 934). Unless and until a different test is adopted by New York's high court (see footnote 4), this appears to be a reasonable standard to apply.

In the matter at hand, claimant has properly asserted his federal due process and equal protection claims via 42 U.S.C. § 1983 in United States District Court (see footnote 3), and he could also have brought the § 1983 action in State Supreme Court. While a § 1983 action addresses federal, rather than state, constitutional violations, claimant does not maintain that the equal protection and due process rights protected by the federal constitution are in any way different from those protected by the state constitution. In fact, a New York court has explicitly held that, at least in relation to the equal protection clause, the State provision is "no broader in coverage than the Federal provision ..." (Holtzman v. Supreme Court of the State of New York, 139 Misc.2d 109, 121, 526 N.Y.S.2d 892). Thus, 42 U.S.C. § 1983 is one statute that provides claimant...