Lynn v. State, 2021-51151

CourtNew York Court of Claims
Writing for the CourtWalter Rivera, J.
PartiesThomas Lynn, Claimant v. State of New York, New York State Insurance Fund, Defendants
Decision Date23 November 2021
Docket Number2021-51151

Thomas Lynn, Claimant

State of New York, New York State Insurance Fund, Defendants

No. 2021-51151

Court of Claims

November 23, 2021

Unpublished Opinion

Claimant's attorney:


Defendant's attorney:


Attorney General for the State of New York

By: Rachel Zaffrann, Deputy Assistant Attorney General

Walter Rivera, J.

The following papers numbered 1-4 were read and considered by the Court on movant's late claim application:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits 1

Attorney's Affirmation in Opposition 2

Amended Affirmation in Opposition Filed October 6, 2021 3

Movant's Exhibit 4 Attachments Exhibits A-D, Filed November 1, 2021 4

Text of the decision:

Movant brings this application for late claim relief pursuant to Court of Claims Act § 10 (6) [1]. The proposed claim arises out of an alleged incident that occurred on June 10, 2020, during movant's employment as an Auditor 1 with the New York State Insurance Fund (NYSIF) (Movant's Ex. 1). Movant and four co-workers, John Varghese, Israel Macias, Nazmoon and Abdullah Mahbub, attended a staff meeting via Skype, with a supervisor, Audrey Tyson, an Auditor 2. During the meeting, the supervisor allegedly asked movant, "[d]o you date males or females?" (id. at ¶ 2).


On December 15, 2020, movant filed an Employment Discrimination Complaint Form against NYSIF with the Westchester County Human Rights Commission (WCHRC) alleging a violation of Westchester County Human Rights Law § 700.03 (a) (Movant's Ex. 2). By letter dated December 15, 2020, WCHRC notified NYSIF of the filed complaint and directed NYSIF to submit a Position Statement and all supporting documentary evidence responding to the allegations of the complaint (Movant's Ex. 3).

NYSIF responded by statement dated January 15, 2021with supporting documentation (Movant's Ex. 4). NYSIF denied the allegations of the complaint and maintained that WCHRC did not have jurisdiction over NYSIF or its employees because NYSIF is a State agency. The response also stated that:

"the New York State Governors Office of Employee Relations Anti-Discrimination Unit is responsible for investigating all complaints of employee discrimination at New York State agencies. They investigated the allegations raised in the complaint. NYSIF did not investigate the allegations raised in the complaint"

(id. at p 3, ¶ 5). Additionally, the statement provided that "NYSIF does not have any complaints or allegations against NYSIF or Ms. Tyson alleging discrimination based upon sexual orientation within the past two years" (id. at ¶ 6).

There were no recordings or documentation of the June 10, 2020 Skype meeting (id. at ¶ 3). NYSIF attached to its statement an affidavit of Tyson wherein she denied asking movant during the meeting "if he dates men or women or males or females or any question along those lines" (id. at Attachment Ex. A). Additionally, NYSIF's response stated:

"[a]ccording to interviews conducted by the New York State Governor's Office of Employee Relations Anti-Discrimination Unit, Ms. Nazmoon stated she does not recall hearing anything personal on the Skype call. Mr Varhese stated he was on the Skype call for the entire duration and he did not hear Ms. Tyson ask Mr. Lynn the question at issue. Mr. Marcias stated he does not recall hearing Ms. Tyson ask Mr. Lynn whether he dates men or women because he doesn't pay attention to conversations not related to work. Mr. Mahbub stated he did not hear the question"

(id. at p 4).

On April 28, 2021, WCHRC issued an Order of Administrative Dismissal on the basis that WCHRC lacks jurisdiction over the matter (Movant's Ex. 5).

Late Claim Application

Thereafter, in June 2021, movant filed the instant late claim application. The proposed claim alleges that the question posed to movant by the supervisor during the staff meeting was discriminatory and asked in violation of New York State Human Rights Law (HRL). The proposed claim alleged damages as: "including but not limited to personal injuries to his body and mind, mental anxiety, stress, emotional distress, loss of employment, damage to his reputation, loss of compensation, permanent damage to reputation and standing in the community, loss of comfort, support, and companionship, extreme mental and emotional harm and stress, impairment of earning power, and other injuries not yet fully ascertained" (Movant's Ex. 1, ¶ 4). The State opposes the application.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 N.Y.2d 979 [1982]).

The Court has considered all of the factors. With regard to the first factor, a claim alleging a violation of the NYS HRL must be commenced within 90 days after the accrual of the claim (Court of Claims Act § 10 [3]; see Bhagalia v State of New York, 228 A.D.2d 882, 883 [3d Dept 1996] [Court of Claims Act § 10 (3) was held to be applicable in determining whether an alleged violation of HRL was timely commenced]). In the case at bar, it is undisputed that a claim was not timely commenced. Movant's purported excuse for the delay is that he was "unaware of the Notice of Claim requirement" (Attorney's Supporting Affirmation ¶ 7). Movant's excuse is essentially ignorance of the law, which is not a reasonable excuse (see Borawski v State of New York, 128 A.D.3d 628, 629 [2d Dept 2015] ["ignorance...

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