Foy v. State

• Decision Date: 16 February 2021
• Docket Number: 135085
• Citation: 144 N.Y.S.3d 285,71 Misc.3d 605
• Parties: Jahn FOY, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

71 Misc.3d 605

144 N.Y.S.3d 285

Jahn FOY, Claimant,

v.The STATE of New York,¹ Defendant.

135085

Court of Claims of New York.

Decided on February 16, 2021

For Claimant: JAHN FOY, PRO SE

For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL, BY: Ellen S. Mendelson, Esq., Assistant Attorney General

Richard E. Sise, A.P.J. Claimant brought this action seeking to be reinstated to his position as a New York State Court Officer and for a declaratory judgment that a stipulation he signed regarding the terms of his continued employment is void. He also requests money damages for his alleged wrongful termination. Defendant has moved to dismiss the claim on the grounds that the claim was not timely filed or served, that the court lacks jurisdiction to issue the declaratory judgment sought here or to order that claimant be reinstated to his position.

Claimant alleges that on February 7, 2019 he entered into a stipulation with the Office of Court Administration which provided that he could be fired immediately if he was late for work more than three times in any consecutive four-week period, or was late for work more than a total of thirty minutes in any consecutive four-week period, or if he reported to his assigned post late more than three times in any consecutive four-week period. According to claimant, he was called into a meeting on December 10, 2019. The purpose of the meeting is not made clear in the claim but involved some discussion of lateness issues regarding claimant. Claimant alleges that sometime prior to the meeting he had made an inquiry about an incident report in which he was named. He asserts that the report was falsified and that he was attempting to have the report corrected. He further contends that the December 10th meeting was provoked by his efforts regarding that incident report. As alleged in the claim, his termination on February 18, 2020 was done in bad faith and under false pretenses. The claim also makes a vague reference to a decision made by a Judge Silver and argues that the decision was made without adequate consideration of the circumstances surrounding claimant's termination.

As defendant correctly argues, the court does not have jurisdiction to make a declaratory judgment with respect to the stipulation regarding claimant's continued employment (see Court of Claims Act § 9 [9-a] [power to make a declaratory judgment limited to controversies involving the obligation of an insurer to indemnify or defend a defendant in this court]; cf. CPLR 3001 [power of Supreme Court to render a declaratory judgment]). Defendant also correctly argues that this court does not have the power to order such equitable relief as reinstatement ( Koerner v. State of New York , 62 N.Y.2d 442, 478 N.Y.S.2d 584, 467 N.E.2d 232 [1984] ).

Whether the claim was timely filed and served depends on a number of considerations; the date of accrual, the time within which the claim must be filed and served, the dates of filing and service and any tolls or suspensions that may apply. The latest date for any event alleged in the claim is February 18, 2020, the date on which claimant was terminated, and, because the date when the claim arose must be alleged in the claim ( Court of Claims Act § 11 [b] ), this represents the latest possible date of accrual. Under Court of Claims Act § 10 the claim for wrongful termination, to the extent one exist here (see Piro v. Bowen , 76 A.D.2d 392, 397, 430 N.Y.S.2d 847 [2d Dept. 1980] [the general rule is that a discharged public employee cannot recover unpaid salary until they prove their right to the position from which they were discharge]), had to be filed and served within 90 days of accrual (see Sager v. County of Sullivan , 145 A.D.3d 1175, 41 N.Y.S.3d 443 [3d Dept. 2016] [treating claim for wrongful termination based on retaliatory action as a tort]). The claim, however, was not filed until July 21, 2020, and not served until November 17, 2020, which is nearly nine months after the February 18, 2020 date of accrual. Thus, the claim was not served within the period of time prescribed by section 10.

Claimant argues, however, that he has been afforded additional time to file and serve his claim by Executive Order 202.8 issued on March 20, 2020 by Governor Cuomo in response to the COVID-19 public health emergency. The executive order, extended seven times and to the extent it applies here, ultimately expired on November 3, 2020,² was issued pursuant to authority vested in the Governor by Executive Law § 29-a. The executive order provides in part that:

"any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020."

The executive order makes pointed reference to the Court of Claims Act and is clear in stating that any specific time limit for the commencement of any legal action is tolled. A toll suspends the running of the applicable period of limitation for a finite time period, in this instance, 30 days³ , and "[t]he period of the toll is excluded from the calculation of the time in which the [claimant] can commence an action." ( Chavez v. Occidental Chem. Corp. , 35 N.Y.3d 492, 505, n. 8, 133 N.Y.S.3d 224, 158 N.E.3d 93 [2020] ). The amount of time covered by the original executive order and all extensions is 228 days. The number of days between when the claim accrued, February 18, 2020, and when claimant...