Watkins v. State, # 2014-032-120

• Decision Date: 08 July 2014
• Docket Number: Motion No. M-84353,Claim No. 123541-A,# 2014-032-120,Motion No. M-84743
• Court: New York Court of Claims
• Parties: MATTHEW WATKINS v. THE STATE OF NEW YORK

MATTHEW WATKINS v. THE STATE OF NEW YORK

# 2014-032-120

Claim No. 123541-A

Motion No. M-84353

Motion No. M-84743

New York State Court of Claims

July 8, 2014

Synopsis

The Court grants defendant's motion to dismiss the claim as untimely and denies claimant's motion for late claim relief on the basis that there was no excuse for the delay in filing and there is no merit to the claim, which alleges that claimant was wrongfully terminated from his employment with the New York State Office of Information Technology Services, allegedly in violation of the Americans with Disabilities Act of 1990 and the Family and Medical Leave Act.

Case information

UID:	2014-032-120
Claimant(s):	MATTHEW WATKINS
Claimant short name:	WATKINS
Footnote (claimant name) :
Defendant(s):	THE STATE OF NEW YORK
Footnote (defendant name) :	The caption has been amended sua sponte to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):	123541-A
Motion number(s):	M-84353, M-84743
Cross-motion number(s):
Judge:	JUDITH A. HARD
Claimant's attorney:	Gleason, Dunn, Walsh & O'Shea

By: Ronald G. Dunn, Esq.

By: Sarah J. Burger, Esq.
Defendant's attorney:	Hon. Eric T. Schneiderman, NYS Attorney General

By: Anthony Rotondi, Assistant Attorney General,

Of Counsel
Third-party defendant's attorney:
Signature date:	July 8, 2014
City:	Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, Matthew Watkins, was terminated from his employment with the New York State Office of Information Technology Services (OITS) on September 18, 2012, allegedly in violation of the Americans with Disabilities Act of 1990, 42 USC § 12101 (ADA) and the Family and Medical Leave Act, 29 USC § 2601, et seq, (FMLA). On November 21, 2013, claimant filed with the Court of Claims motion No. M-84353 for leave to file a late claim and claim No. 123541-A, incorrectly captioned a "verified complaint."² On March 5, 2014, defendant moved to dismiss claim No. 123541-A. Initially, the Court will address defendant's motion to dismiss the claim because if defendant's motion is denied, it will obviate the need for the Court to decide claimant's motion for leave to late file a claim.

Defendant's Motion to Dismiss (M-84743)

Defendant moves to dismiss claim No. 123541-A on the grounds that this Court lacks subject matter jurisdiction as the claim was untimely. The claim was filed and personally served on November 21, 2013. An answer was filed and served on January 15, 2014. Pursuant to the fourth defense in its answer, defendant alleges that the Court lacks subject matter jurisdiction because the claim was untimely as neither the claim nor a notice of intention was served within ninety (90) days of accrual as required by Court of Claims Act §§ 10 and 10 (3-b). Defendant also alleges in the fifteenth defense in its answer that the Court lacks subject matter jurisdiction because the claim was untimely as neither the claim nor a notice of intention was served within six (6) months of accrual of the claim pursuant to Court of Claims Act §§ 10 (3), 10 (3-b) and 10 (4) or 11.

The failure to timely comply with the filing and service requirements of the Court of Claims Act gives rise to a jurisdictional defect, compelling dismissal of the claim (Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]), provided that the jurisdictional defect is raised with particularity in either a motion to dismiss made before service of the responsive pleading or in the responsive pleading (Court of Claims Act § 11 [c]). Here, defendant has properly raised the defense in its answer.

Assuming without deciding that a claim pursuant to the ADA and the FMLA may be asserted against the State in the Court of Claims (see Montalvo v State of New York, UID No. 2013-049-013 [Ct Cl, Weinstein, J., Mar. 6, 2013]),³ a question remains as to whether the ninety (90) day period after accrual within which to commence an action for injuries caused by the negligence or intentional acts of an officer or employee of the State under Court of Claims Act § 10 (3) and § 10 (3-b) or the six (6) month period after accrual within which to commence an action for breach of contract or any other claim not otherwise provided for is applicable. It is not necessary to decide which section is applicable as the action is untimely under any of the possibilities.

The latest possible accrual date is September 18, 2012, the effective date of claimant's termination from OITS. Thus, even if the longer six (6) months of accrual period afforded by Court of Claims Act § 10 (4) is applicable, the claim filed and served on November 21, 2013, approximately 14 months after accrual, is untimely and must be dismissed.

In opposition, claimant argues that the section 10 periods for commencing claims in the Court of Claims are tolled pending an administrative claim with the Equal Employment Opportunity Commission (EEOC) and receipt from the EEOC of a right to sue letter. Here, claimant's right to sue letter was dated August 21, 2013 and allegedly received on August 23, 2013. Claimant was advised in the right to sue letter that, if he intended to commence a lawsuit, he needed to do so within 90 days of receipt of the right to sue letter. Claimant argues that the claim is timely as the claim was filed within 90 days of receipt of the right to sue letter.

The right to sue letter claimant received, however, noted that "[t]he time limit for filing suit based on a claim under state law may be different." Moreover, "[t]he fact that the ADA sets forth its own particular rules for timeliness does not absolve the claimant of the need to file within the deadlines set forth in the Court of Claims Act § 10, which govern actions filed in this Court .... Nothing in either New York or federal law indicates that those requirements are waived in the event claimant has commenced an action within the limitations period provided for by the ADA for federal suits" (Montalvo v State of New York, supra at pp 3-4; see also Rehman v State of New York, UID No. 2009-045-021 [Ct Cl, Lopez-Summa, J., Aug. 5, 2009]). Because the claim was neither filed nor served within the deadlines set forth in section 10 of the Court of Claims Act, defendant's motion No. M-84743 to dismiss is granted and claim No. 123541-A is dismissed.

Claimant's Motion for Leave to Late File a Claim (M-84353)

Because the Court granted defendant's motion (M-84743) and dismissed claim No. 123541-A, the Court will proceed to discuss claimant's motion for leave to late file a claim (M-84353). The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must first determine whether the claim would be timely under Article 2 of the New York Civil Practice Law and Rules (CPLR) and then consider certain statutory factors (Court of Claims Act § 10 [6]). Among the factors to consider are: (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 upon the Attorney General a timely claim or notice of intention to file a claim resulted in substantial prejudice to the State; and (6) whether the claimant has any other available remedy (Court of Claims Act § 10 [6]). The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Fireman's Retirement Sys., 55 NY2d 979 [1982]).

Whether the claim is meritorious is the most important factor as it would be futile to proceed with a meritless claim (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). Unlike those who file their claims in a timely manner, a party seeking to file a late claim must demonstrate to the Court's satisfaction that the proposed claim appears to be meritorious (Witko v State of New York, 212 AD2d 889 [3d Dept 1995]). Thus, to succeed on a motion for leave to late file, the movant must establish that the proposed claim is not patently groundless, frivolous or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

Initially, the Court must determine if claimant's motion was brought before an action asserting a like claim against a citizen of the State would be barred under the provisions of Article 2 of the CPLR. Claimant argues that his motion is timely as he had 90 days from receipt of the right to sue letter to commence an action under the ADA and had two years from the last event constituting the alleged violation, the date of termination, to bring an action under the FMLA. A Human Rights Law claim brought in Supreme Court would be subject to the three (3) year statute of limitations (CPLR § 214 [2]; Rehman v State of New York, supra at p 8). Under any of these statutes, however, claimant's motion for leave to late file is timely.

The first factor to consider is whether the delay was excusable. In his motion papers, claimant offers no excuse for the delay in filing a claim. It is only in counsel's reply affirmation that it is argued that claimant was awaiting receipt of the right to sue letter before commencing an action. Technically, an argument raised for the first time in a reply need not be considered, as the purpose of reply papers is to address arguments made in opposition to the movant's position and not to allow the movant to introduce new arguments in support of his motion (Azzopardi v American Blower...