Lepkowski v. State of NY

• Decision Date: 18 December 2003
• Citation: 1 N.Y.3d 201,802 N.E.2d 1094,770 N.Y.S.2d 696
• Parties: RICHARD T. LEPKOWSKI et al., Appellants, v. STATE OF NEW YORK, Respondent.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 201

802 N.E.2d 1094

770 N.Y.S.2d 696

RICHARD T. LEPKOWSKI et al., Appellants, v. STATE OF NEW YORK, Respondent.

Court of Appeals of the State of New York.

Argued October 16, 2003.

Decided December 18, 2003.

Lisa M. King, Albany, and William P. Seamon for appellants.

Eliot Spitzer, Attorney General, Albany (Kathleen M. Treasure, Caitlin J. Halligan and Daniel Smirlock of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

READ, J.

We are asked whether the claims in this consolidated action comply with the substantive pleading requirements of section 11 (b) of the Court of Claims Act. We conclude that the claims do not comply because they fail to allege the times when and the place where the claims arose, any items of damage or the total sum claimed. We further conclude that the State must follow the steps in CPLR 3022 in order to preserve any objection that a claim or notice of intention does not comply with the verification requirement in section 11 (b).

I.

Claimants are public employees working in executive branch agencies in civil service titles allocated salary grade 23 or higher. They are all included within the Professional, Scientific and Technical Services Unit (PS&T), which is represented by the Public Employees Federation (PEF) for purposes of collective bargaining with the State of New York.

On July 21, 1994, the Lepkowski claimants and other PS&T employees sued the State in federal court, seeking unpaid overtime pay, liquidated damages and reasonable attorneys' fees, to all of which they claimed entitlement under the federal Fair Labor Standards Act (FLSA). In February 1996, the plaintiff employees moved for partial summary judgment on liability and the State cross-moved for summary judgment to dismiss. The State contended, among other things, that the Eleventh Amendment guarantee of state sovereign immunity deprived the federal courts of subject matter jurisdiction. The United States District Court for the Northern District of New York rejected the argument, and held that the State was liable for overtime compensation to certain of these employees on account of "a minor aspect of one of [the State's] policies" (Close v State of New York, 1996 WL 67979, *11, 1996 US Dist LEXIS 1748, *34 [ND NY, Feb. 13, 1996]).¹

While the case was pending in District Court, however, the United States Supreme Court handed down Seminole Tribe of Fla. v Florida (517 US 44 [1996]), which significantly altered prior understandings of Congress' authority to abrogate the states' Eleventh Amendment immunity. In light of Seminole, the State succeeded when it again sought dismissal on Eleventh Amendment grounds (1996 WL 481550, 1996 US Dist LEXIS 12330 [ND NY, Aug. 19, 1996]), and the United States Court of Appeals for the Second Circuit affirmed (125 F3d 31 [1997]).

On January 22, 1998, roughly five months after the Second Circuit's decision, the Lepkowski claim was filed in the Court of Claims. The claim, which mimics the dismissed federal FLSA complaint, alleges that the employees worked over 40 hours in unspecified work weeks from July 1992 to the present; it does not identify where the claims arose, itemize damages or indicate the total sum sought. One individual claimant verified the claim, to which is attached a list of 377 claimants with their home addresses.

On February 19, 1997, claimants in Abelson served the Attorney General with a notice of intention to file an FLSA claim in the Court of Claims on behalf of 390 PS&T employees. The Abelson claim, filed on January 21, 1998, alleges that claimants worked more than 40 hours in unspecified work weeks since April 1994, and does not identify where the claims arose, itemize damages or indicate the total sum sought. One individual claimant verified Abelson on behalf of all claimants, who listed their home addresses and identified the state agencies for which they worked.

By order filed on January 28, 1999, the Court of Claims consolidated Abelson into Lepkowski, finding that consolidation would allow for more efficient discovery since 148 of the claimants were included in both cases. In June 2001, the State moved to dismiss on various grounds, including failure to comply with both the substantive pleading and the verification requirements of Court of Claims Act § 11 (b). This provision prescribes in relevant part that

"[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed . . . The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court" (emphasis added).

In a decision and order filed on September 14, 2001, the Court of Claims denied the State's motion to dismiss on section 11 (b) grounds, concluding that both claims were sufficiently detailed to fulfill section 11 (b)'s substantive pleading requirements, and were properly verified within the meaning of CPLR 3020 (d) because the verifiers had knowledge of the facts and were united in interest with the other claimants. On the State's cross appeal,² the Appellate Division, with two Justices dissenting, reversed and granted the State's motion to dismiss (302 AD2d 765 [3d Dept 2003]). In the Appellate Division's view, "[w]hile the claims . . . satisfactorily state the nature of the relief sought by claimants, they completely fail to provide the times when and the place where such claims arose, any items of damage or the total sum claimed" as required by section 11 (b) (302 AD2d at 766). These omissions were not remedied by any access that the State might have to this information from its own records because "the sufficiency of a claim rests solely upon the assertions contained therein, and [the State] is not required to go beyond the claim in order to investigate" (id.). Further, the record before the Court "belie[d] a claim that claimants' work hours were a matter of public record readily ascertainable by [the State]" (id. at 766-767). Finally, the Appellate Division concluded that while the claimants might be united in interest, "there is no evidence that the two claimants who verified the claims are acquainted with the factual premises for the remaining . . . claimants' entitlement to overtime compensation" (id. at 767).

In the opinion of the two dissenting Justices, however, claimants complied with the substantive pleading requirements of section 11 (b) by alleging the "proverbial where, when and how" of their claims in enough detail for the State to "conduct a meaningful investigation regarding its potential liability" (id. at 768); and the State waived any objection to defective verification by virtue of its failure to take timely action under CPLR 3022 (id. at 769). Claimants now appeal to us as of right (CPLR 5601 [a]).

II.

The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature (see Court of Claims Act § 8 [specifying that the State waives its immunity from liability and action "provided the claimant complies with the limitations" of article II of the Court of Claims Act, which includes section 11]; see also Alston v State of New York, 97 NY2d at 163). Further, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). As relevant here, section 11 (b) places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) "the nature of [the claim]"; (2) "the time when" it arose; (3) the "place where" it arose; (4) "the items of damage or injuries claimed to have been sustained"; and (5) "the total sum claimed."³

Claimants fulfilled section 11 (b)'s requirement to specify "the nature of [the claim]." They asserted that each named claimant was a past or present state employee; was in the PS&T bargaining unit; was assigned to a civil service title allocated grade 23 or higher; had worked overtime; was required to be paid overtime compensation pursuant to the FLSA; and was not paid this overtime compensation. They did not, however, adequately allege the remaining elements required by section 11 (b).

As for "the time when" the claims accrued, the Lepkowski claimants specified July 1992 and continuing to the present, and the Abelson claimants specified April 1994 and continuing to the present.⁴ All that the State may guess from these allegations is that some or all of the 377 Lepkowski and 390 Abelson claimants worked some number of hours in excess of 40 in some or all of the work weeks over many months and years. This is insufficiently definite "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances," which is the guiding principle informing section 11 (b) (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).

Claimants assert in their brief that the "place where" their claims arose is their various work locations. These are not specified. Lepkowski includes the claimants' names and home addresses, but does not identify the state agency or department for which each claimant worked or in any other way particularize where any claim arose. In addition to names and home addresses, Abelson identifies the agency or department for which each claimant worked, but not a primary work location. For those claimants employed in agencies or departments that maintain offices in multiple locations, Abelson reveals little more than that their claims arose somewhere within the state's...