White v. State, 87018

• Decision Date: 01 July 1994
• Docket Number: No. 87018,87018
• Citation: 615 N.Y.S.2d 811,161 Misc.2d 938
• Parties: Bonnie J. WHITE, Claimant, v. STATE of New York, Defendant.
• Court: New York Court of Claims

Page 811

615 N.Y.S.2d 811

161 Misc.2d 938

Bonnie J. WHITE, Claimant, v. STATE of New York, Defendant.

Claim No. 87018 Court of Claims of New York.

July 1, 1994.

Arthur G. Nevins, Jr., New York City, for claimant.

Robert Abrams, Atty. Gen. (Frank J. Wenick and Janet L. Polstein, New York City, of counsel), for defendant.

GERARD M. WEISBERG, Judge.

This is defendant's motion for summary judgment dismissing the claim and claimant's cross motion to strike affirmative defenses, to amend the claim and for permission to file it late.

From the papers, it appears that on October 16, 1987, claimant was a principal file clerk employed by defendant. On that date, the State instituted a notice of discipline (NOD) against claimant for instances of misconduct and insubordination. The NOD was settled in accordance with an agreement dated November 19, 1987. That document expressly provided that "[a]ny further alleged incidents of misconduct or insubordination * * * will result in the immediate issuance of a Notice of Discipline seeking termination."

Thereafter, defendant instituted another NOD dated August 1, 1988, which outlined acts of misconduct and insubordination and sought claimant's termination. Pursuant to the collective bargaining agreement between the Civil Service Employees Association (CSEA) and defendant, hearings were held before an arbitrator. Claimant was represented thereat by an attorney provided by CSEA. The arbitrator in a 15-page Opinion and Award dated May 26, 1989, found claimant guilty of two acts of insubordination. Based on her prior recent history of similar conduct, as evidenced by the prior settlement, the arbitrator awarded the penalty of termination. On June 1, 1989, claimant was informed of the decision, terminated, and escorted against her will off the State's premises. As of that date, the arbitrator's award had not been judicially confirmed.

On September 20, 1989, claimant moved pursuant to Article 75 of the CPLR to vacate or modify the award. By an order and an opinion, both dated October 10, 1989, Justice Leonard N. Cohen, Supreme Court, New York County, found that no grounds to set aside the award existed and therefore denied the motion. Although neither his opinion nor the order so stated, by operation of law, his denial of the motion to vacate confirmed the award. (CPLR 7511[e].)

By a petition dated September 24, 1990, claimant then commenced an Article 78 proceeding which sought reinstatement with back salary from June 1, 1989 based on the assertion that the arbitrator's award had not been judicially confirmed. Defendant cross moved to file a judgment confirming the award.

In a decision dated June 24, 1991, Justice Martin Schoenfeld denied both motions. Without discussion, Justice Schoenfeld assumed, apparently arguendo, that the arbitrator's award had to be confirmed to be effective. Inasmuch as the statute of limitations to obtain confirmation was one year (CPLR 215, 7510), an unsuccessful motion to vacate confirms by operation of law (CPLR 7511[e], and an unsuccessful motion to vacate had been commenced within one year of the delivery of the award, Justice Schoenfeld held that the award had been confirmed within the statute of limitations. Defendant's cross motion to file a judgment was denied "as unnecessary."

On appeal, the First Department affirmed essentially on Justice Schoenfeld's analysis, to wit: assuming that the award had to be confirmed, it was so within the statute of limitations by claimant's unsuccessful motion to vacate. (Matter of White v. Department of Law of State of N.Y., 184 A.D.2d 229, 584 N.Y.S.2d 555, lv. denied 80 N.Y.2d 759, 591 N.Y.S.2d 137, 605 N.E.2d 873.)

Claimant then took the position that although defendant had obtained the right to terminate her that right only became enforceable on July 16, 1991--apparently the date Justice Schoenfeld's order was entered. Therefore, claimant concluded, her termination on June 1, 1989 was premature and unlawful and for which she is entitled to damages through and until July 16, 1991. Claimant states that on February 17, 1993 she wrote to her union demanding that it enforce this claim. Allegedly by a letter dated March 9, 1993, CSEA declined to do so. ¹ On March 24 and 25, 1993, respectively, claimant served and filed the instant claim propounding the theory of recovery set forth above, and asserting the bad faith of the union in failing to prosecute it.

Defendant has now moved for summary judgment dismissing the claim on the grounds of res judicata and lateness. As to the former, the doctrine applies to arbitration awards. (Ecker v. Lerner, 123 A.D.2d 661, 507 N.Y.S.2d 31.) Thus, " 'once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy * * *.' " (Supra, at 661, 507 N.Y.S.2d 31 quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-358, 445 N.Y.S.2d 687, 429 N.E.2d 1158.) The one proviso to the foregoing being that the court must have had jurisdiction over the omitted cause of action for the bar to obtain. Obviously one cannot be held to have waived a cause of action one could not bring. (Siegel, NY Prac § 218, at 317 [2d ed.].)

As a general proposition, supreme court has jurisdiction to review agency determinations pursuant to Article 78 of the CPLR. This Court has jurisdiction to award money damages at law. (Court of Claims Act § 9.) Where, however, a demand for money damages is incidental to an entitlement to equitable relief, supreme court has jurisdiction over both causes of action. (Matter of Gross v. Perales, 72 N.Y.2d 231, 237, 532 N.Y.S.2d 68, 527 N.E.2d 1205.) Incidental means that the same facts which justify equitable relief justify money damages. (CPLR 7806; Matter of Gross v. Perales 2 N.Y.2d 231, 237, 532 N.Y.S.2d 68, 527 N.E.2d 1205, supra.) Whether damages are incidental to the primary relief sought depends on the facts of the case. (Supra, 72 N.Y.2d at 236, 532 N.Y.S.2d 68, 527 N.E.2d 1205.)

Here, claimant commenced an Article 78 proceeding against the State seeking reinstatement with back salary and other benefits from June 1, 1989 based on a lack of confirmation of the arbitrator's award. She did not, in the alternative, expressly seek damages from the date of her termination until the date of the confirmation, and therefore the issue was not passed upon. If, but only if, supreme court had subject matter jurisdiction over that unpleaded cause of action, claimant has split her action and is precluded by the doctrine of res judicata from raising the claim now just as if it had been determined adversely to her in the Article 78 proceeding. (Pauk v. Board of Trustees of City Univ. of N.Y., 68 N.Y.2d 702, 506 N.Y.S.2d 308, 497 N.E.2d 675.)

Under claimant's theory of her case as presented in the Article 78 proceeding and here, defendant could not terminate her employment until the arbitrator's award was confirmed. Assuming arguendo that is the law, on the facts pleaded in the Article 78 proceeding, defendant was enjoined by law to pay her salary until confirmation. A claim for money damages was therefore incidental to equitable relief. (Matter of Pfingst v. Levitt, 44 A.D.2d 157, 354 N.Y.S.2d 26, lv. denied 34 N.Y.2d 518, 359 N.Y.S.2d 1025, 316 N.E.2d 883.) This is particularly true in this case where at the commencement of the Article 78 proceeding, under claimant's theory, she was seeking first and foremost the equitable relief of reinstatement. To allow her to sever off a cause of action for money damages for back salary for only a portion of this period would be to encourage wasteful piecemeal litigation. (See, Matter of Gross v. Perales, 72 N.Y.2d 231, 237, 532 N.Y.S.2d 68, 527 N.E.2d 1205, supra. But cf., Matter of Schwab v. Bowen, 41 N.Y.2d 907, 394 N.Y.S.2d 616, 363 N.E.2d 341 [where equitable relief becomes moot, money damages are no longer incidental].

Thus, I hold that this claim is barred by the doctrine of res judicata. I therefore need not and do not reach the issue of timeliness. However, as a alternative basis for granting this motion, although not raised by the parties, in my opinion the claim fails to state a cause of action.

As stated above, the gravamen of the claim is that defendant could not enforce the arbitrator's award unless and until it was judicially confirmed. Moreover, while in the prior proceedings, Justice Schoenfeld and the Appellate Division apparently assumed that to be the law, neither court addressed the issue because the award had been confirmed within the statute of limitations. The sole authority, however, claimant has cited for this proposition is Article 34 of the collective bargaining agreement between her union and defendant. Therein of relevance is only the following statement: "The decision and award of the arbitrator shall be final and binding consistent with the provisions of CPLR Article 75."

While it is certainly true that Article 75 provides a mechanism for obtaining a judicial confirmation of an arbitrator's award, nowhere in that Article is there a requirement that such be done. Professor Siegel is of the view that confirmation and the entry of judgment thereon are only necessary if the winner wants to seek judicial enforcement of the award. (Siegel, NY Prac § 601 at 969 [2d ed].) The Second Department has embraced this view. (County of Rockland v. Aetna Cas. & Sur. Co., 129 A.D.2d 606, 514 N.Y.S.2d 102; Hilowitz v. Hilowitz, 85 A.D.2d 621, 444 N.Y.S.2d 948 [arbitrator's...