Taylor v. State, M-48575

• Decision Date: 06 January 1994
• Docket Number: No. M-48575,M-48575
• Citation: 608 N.Y.S.2d 371,160 Misc.2d 120
• Parties: Louise TAYLOR, Claimant, v. The STATE of New York, Defendant. 1 Motion
• Court: New York Court of Claims

Page 371

608 N.Y.S.2d 371

160 Misc.2d 120

Louise TAYLOR, Claimant, v. The STATE of New York, Defendant. ¹

Motion No. M-48575.

Court of Claims of New York.

Jan. 6, 1994.

Satter & Connor, Syracuse, (Mimi C. Satter, of counsel), for claimant.

Robert Abrams, Atty. Gen. (Debra S. Staley, Asst. Atty. Gen., of counsel), for defendant.

JOHN L. BELL, Judge.

The issue presented on the instant motion for permission to file a late claim is whether the Court of Claims has subject matter jurisdiction to consider a so-called "whistleblower" claim in which it is alleged that a former State employee was subjected to retaliatory action by her superiors in violation of Civil Service Law § 75-b enacted in 1984. Such issue has not been determined by any reported case.

Defendant hired claimant in April 1984 to work as a dental hygienist at Mid-State Correctional Facility (hereinafter Mid-State), Oneida County. She asserts that by November 1988 she became very concerned about infection control procedures and practices in the dental clinic at Mid-State. In her affidavit claimant states that her supervisor, who was a dentist, sometimes used the same dental burr on more than one inmate without properly cleaning or sterilizing the instrument. On more than one occasion, she purportedly observed her supervisor place an impression tray in an inmate's mouth and, if it did not fit, he simply returned it to a drawer for use on another inmate without sterilization or cleaning. On another occasion, her supervisor allegedly sprayed her with a water syringe after removing it from an inmate's mouth. Claimant states that she complained to various supervisors and administrators at Mid-State about the aforementioned conditions as well as other purportedly egregious conduct that occurred in the dental clinic.

Claimant contends that as a result of her complaints she was excluded from staff meetings, denied leave time to which she was entitled, sexually harassed, and otherwise harassed at the work place. Her papers in support of the instant motion state that by October 16, 1992 she could no longer tolerate the harassment, and thus she tendered her resignation. She relates that she attempted to rescind her resignation within hours of tendering it but that administration personnel refused to allow her to withdraw her resignation letter.

Claimant alleges that she was "constructively discharged" and that the motivation for the discharge was retaliation against her for being a "whistleblower." She seeks permission to file a late claim asserting three causes of action premised upon Civil Service Law § 75-b. The relief sought in the proposed claim is "reinstatement with full back pay from October 16, 1992, injunctive relief, attorney's fees, costs and disbursements * * *."

The instant motion was filed on October 14, 1993. An affirmation opposing the motion was subsequently filed in which defendant argues, inter alia, that the Court of Claims lacks subject matter jurisdiction over a claim premised upon Civil Service Law § 75-b. Claimant submitted a reply affirmation in which she asserts that whether the court has subject matter jurisdiction is not one of the appropriate criteria when an application to file a late claim is considered.

Initially, addressing the procedural issue posed by claimant in which she asserts that subject matter jurisdiction should not be considered on the motion to file a late claim, the court finds such assertion meritless. Subject matter jurisdiction is a rigid concept, and in the absence of such jurisdiction, a court lacks authority to consider a case. The Court of Appeals has explained that "before [an] action can be maintained, in any court of this state, there must * * * be jurisdiction of the subject-matter of the action. Jurisdiction of the action cannot be conferred upon the court by any consent or stipulation of the parties. The objection to the jurisdiction in such case may be taken at any stage of the action, and the court may, ex mero motu, at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action." (Robinson v. Oceanic Steam Navig. Co., 112 N.Y. 315, 324, 19 N.E. 625; accord, Matter of Baltimore Mail S.S. Co. v. Fawcett, 269 N.Y. 379, 388, 199 N.E. 628, cert. denied sub nom. Madsen v. Baltimore Mail S.S. Co., 298 U.S. 675, 56 S.Ct. 939, 80 L.Ed. 1396; see, 4 Weinstein-Korn-Miller, NYCivPrac p 3211.10). To suggest that the court must first consider the factors set forth in Court of Claims Act § 10(6) and, if they weigh in favor of claimant, grant permission to file a late claim before the court can contemplate its subject matter jurisdiction is simply untenable and inconsistent with long-settled precedent. ² Indeed, when the Court of Claims lacks subject matter jurisdiction, it is reversible error for the court to consider and grant a motion to file a late claim (see, Matter of Rye Psychiatric Hosp. Center v. State of New York, 177 A.D.2d 834, 576 N.Y.S.2d 449, lv. denied 80 N.Y.2d 751, 587 N.Y.S.2d 287, 599 N.E.2d 691; Board of Educ. of City of N.Y. v. State of New York, 88 A.D.2d 1057, 452 N.Y.S.2d 753, affd. 60 N.Y.2d 716, 469 N.Y.S.2d 80, 456 N.E.2d 1203). Accordingly, since an issue of the court's subject matter jurisdiction has been brought to its attention, the court must address such issue before considering relevant factors on the motion to file a late claim and, if jurisdiction is lacking, the motion must be denied.

Defendant contends that the relief authorized by the subject statute, and which is being sought by claimant, is equitable in nature and therefore not within the subject matter jurisdiction of the Court of Claims. While the Court of Claims has only those express powers granted by the Court of Claims Act and is vested primarily with power to consider claims for damages, it is not devoid of equitable powers. If the fundamental nature of a claim against the State is for monetary damages, the court can consider equitable relief incidental thereto (see, Psaty v. Duryea, 306 N.Y. 413, 416, 118 N.E.2d 584; Owasco Riv. Ry. v. State of New York, 181 A.D.2d 665, 580 N.Y.S.2d 466; St. Paul Fire & Mar. Ins. Co. v. State of New York, 99 Misc.2d 140, 152-156, 415 N.Y.S.2d 949). However, if the primary relief sought by claimant is equitable in nature, the Court of Claims, at least in the absence of specific statutory authority, does not have subject matter jurisdiction (see, e.g., Amberge v. State of New York, 186 A.D.2d 962, 589 N.Y.S.2d 118; Davidson v. State Narcotic Addiction Control Commn., 81 Misc.2d 953, 366 N.Y.S.2d 946).

Subdivision (3) of Civil Service Law § 75-b sets forth the procedures and remedies that are available to a public employee who contends that he or she has been the subject of retaliatory action for "whistleblowing." In the affirmation opposing the motion, the State assumes for purposes of the motion to file a late claim that paragraphs (a) and (b) of subdivision (3) do not apply to the constructive discharge claim that claimant wishes to pursue in this court. ³ The relevant provisions are thus set forth in paragraph (c). Paragraph (c) provides, in pertinent part, that a purportedly aggrieved employee who is not subject to any of the provisions of paragraphs (a) and (b) "may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C of the labor law." Reference to Labor Law section 740(5) of the subject article reveals that the court may order the following relief:

(a) an injunction to restrain continued violation of this section;

(b) the reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position;

(c) the reinstatement of full fringe benefits and seniority rights;

(d) the compensation for lost wages, benefits and other remuneration; and

(e) the payment by the employer of reasonable costs, disbursements, and attorney's fees.

In two unreported cases of our court, Twomey v. State of New York, October 11, 1991, (Motion No. M-44635), and Esteves v. State of New York, March 17, 1989, (Motion No. M-39540), Judge Lyons held that the Court of Claims does not have equitable jurisdiction in "whistleblower" cases under Civil Service Law § 75-b. In Twomey, Judge Lyons concluded that while "the court has the power to award monetary damages such as lost wages and attorney's fees (where authorized by statute), it does not have equitable powers and cannot enjoin defendant or order claimant reinstated to his position" (id. at 3 [emphasis added]. Accordingly, Judge Lyons directed that the claim must be amended to eliminate the prayer for an injunction, reinstatement of claimant to his position and reinstatement of fringe benefits.

Inferentially, Judge Lyons concluded that merely because the Court of Claims cannot grant all the relief statutorily authorized does not lead necessarily to the conclusion that it has no jurisdiction (see, Clancy v. State of New York, 126 Misc.2d 292, 481 N.Y.S.2d 943). However, as the elements of relief set forth in the statute are scrutinized, this court concludes that such elements, including "compensation for lost wages, benefits and seniority rights" are all equitable in nature and, consistent therewith, the relief requested in the proposed claim is entirely equitable. Indeed, Labor Law § 740(5) has been construed consistently as permitting only equitable relief, with no provision for general monetary damages (Scaduto v. Restaurant Assocs. Indus., 180 A.D.2d 458, 460, 579 N.Y.S.2d 381; McGrane v. Reader's Digest Ass'n, Inc. 822 F.Supp. 1044, 1045 [SDNY 1993]; Givens, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 30, Labor Law § 740, at 565-566). A distinction must be drawn between compensatory damages such as permitted under the Human Rights Law, specifically Executive Law § 297(4)(c)(iii), and "lost wages, benefits and other remuneration" under Labor Law §...