Shah v. State

• Decision Date: 11 December 2019
• Docket Number: 2018-08963,Claim No. 129334
• Citation: 178 A.D.3d 871,111 N.Y.S.3d 910 (Mem)
• Parties: Bhupendra K. SHAH, appellant, v. STATE of New York, respondent.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 871

111 N.Y.S.3d 910 (Mem)

Bhupendra K. SHAH, appellant,

v.STATE of New York, respondent.

2018-08963

Claim No. 129334

Supreme Court, Appellate Division, Second Department, New York.

Argued - October 17, 2019

December 11, 2019

Bhupendra K. Shah, Pearl River, NY, appellant pro se.

Letitia James, Attorney General, New York, N.Y. (Judith N. Vale and David Lawrence III of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

In a claim, inter alia, to recover damages for employment discrimination, the claimant appeals from an order of the Court of Claims (Thomas H. Scuccimarra, J.), dated March 28, 2018. The order denied his motion for leave to reargue the defendant's motion to dismiss, which was granted in an order of the same court dated September 1, 2017, or alternatively, for leave to file a late claim pursuant to Court of Claims Act § 10(6).

ORDERED that the appeal from so much of the order as denied that branch of the claimant's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the defendant.

The claimant alleges that in May 1983, he was wrongfully terminated from his employment as a research scientist with the Nathan Kline Institute for Psychiatric Research, a facility operated by the New York State Office of Mental Health (hereinafter OMH). Since 1983, the claimant has unsuccessfully applied for various positions with OMH. He has filed numerous actions, in state and federal court, as well as before the Department of Human Rights (hereinafter DHR), against the defendant, inter alia, related to his allegedly being denied employment on the basis of his national origin (see e.g. Shah v. State of New York, 212 A.D.2d 876, 622 N.Y.S.2d 365 ; Shah v. State of New York, 140 Misc.2d 16, 529 N.Y.S.2d 442 [Ct. Cl.] ; Shah v. New York State Dept. of Civ. Serv., 341 Fed. Appx. 670 [2d Cir.] ; Shah v. New York State Dept. of Civ. Serv., 2014 WL 3583506, 2014 U.S. Dist LEXIS 97990 [S.D.N.Y., No. 94–CV–9193(RPP) ] ).

In March 2017, the claimant commenced this action, alleging that OMH wrongfully denied him employment in June 2013. The defendant made a pre-answer motion to dismiss the claim pursuant to CPLR 3211(a)(2) and Court of Claims Act §§ 10 and 11, and the claimant opposed the motion. By order dated September 1, 2017, the Court of Claims granted the defendant's motion to dismiss. The claimant then moved for leave to reargue the defendant's motion to dismiss, or alternatively, for leave to file a late claim pursuant to Court of Claims Act § 10(6), and the defendant opposed the motion. By order dated March 28, 2018, the Court of Claims denied the claimant's motion. The claimant appeals.

" Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors, to allow a claimant to file a late claim" ( Tucholski v. State of New York, 122 A.D.3d 612, 612, 996 N.Y.S.2d 97 ). "No one factor is deemed controlling, nor is the presence or absence of any one factor determinative" ( Qing Liu v. City Univ. of N.Y., 262 A.D.2d 473, 474, 691 N.Y.S.2d 329 ; see Broncati v. State of New York, 288 A.D.2d 172, 173, 732 N.Y.S.2d 365 ). However, if a claim is legally deficient, leave to file a late claim should be denied even if the other factors tend to favor the granting of the request (see Savino v. State of New York , 199 A.D.2d 254, 255, 604 N.Y.S.2d 970 ; Prusack v. State of New York, 117 A.D.2d 729, 730, 498 N.Y.S.2d 455 ; Rosenhack v. State of New York, 112 Misc.2d 967, 969, 447 N.Y.S.2d 856 [Ct Cl.] ). "A claimant seeking permission to file a late claim must do so within the statute of limitations provisions set forth in CPLR article 2" ( Kealos v. State of New York, 150 A.D.3d 1211, 1212, 55 N.Y.S.3d 411 ).

Here, the Court of Claims providently exercised its discretion in denying that branch of the claimant's motion which was for leave to file a late claim. The claimant failed to timely serve his claim upon the Attorney General...