Wiltz v. State

• Docket Number: Claim No. 135840
• Decision Date: 12 August 2022
• Parties: Randall WILTZ, Claimant, v. STATE of New York, Defendant.
• Court: New York Court of Claims

77 Misc.3d 195

175 N.Y.S.3d 172

Randall WILTZ, Claimant,

v.STATE of New York¹ , Defendant.

Claim No. 135840

Court of Claims of New York.

Decided on August 12, 2022

For Claimant: By: Randall Wiltz, Pro Se

For Defendant: Hon. Letitia A. James, Attorney General of the State of New York, By: Lawrence E. Kozar, Esq., Assistant Attorney General

Javier E. Vargas, J.

For the following reasons, the Motions by Defendant the State of New York (hereinafter "State"), seeking dismissal of this Claim pursuant to CPLR 3211(a)(2) and Court of Claims Act §§ 10 and 11, are granted and the Claim is hereby dismissed as provided hereinbelow.

I.

In order to understand the genesis of this Claim, it will be helpful to explain the facts as best as this Court can distill from the Claim and "Verified Amended Complaint." For ten years, Claimant Randall Wiltz (hereinafter "Claimant") was living in a rent-stabilized apartment owned by non-party New York University (hereinafter "NYU") with leaseholder Martha Dewell - with whom he had a relationship and called his "surrogate mother" - until her death in April 2015 (see Wiltz v. New York Univ., 119CV03406GHWSDA, 2019 WL 8437456 [S.D.N.Y. Dec. 23, 2019], report and recommendation adopted, 1:19-CV-03406-GHW, 2020 WL 614658 [S.D.N.Y. Feb. 10, 2020] ). In the months following, Claimant mantains he fell into a deep depression requiring professional medical care.

In late 2015, Claimant submitted an application for a lease renewal as well as accommodations for his "mental disability

" to NYU, which was denied. In January of 2016, Claimant received a Notice of Eviction from NYU, which he contends was the result of a "discriminatory harassment scheme" because he is an African American with a "mental disability" ( id. ). On March 9, 2017, NYU commenced an eviction proceeding in New York County Housing Court, which eventually culminated with a Warrant of Eviction, evicting Claimant from the NYU apartment ( id. ).

Based upon allegedly discriminatory intent by NYU in their eviction efforts and Housing Court proceedings, Claimant filed a complaint against NYU with the New York State Division of Human Rights (hereinafter "DHR") in May of 2017, requesting an investigation into NYU's actions surrounding his eviction. In 2018, after an investigation, Claimant received a "no probable cause" determination from DHR, essentially finding that there was no wrongdoing by NYU. Unsatisfied with DHR's conclusion, Claimant then challenged the agency determination in a special proceeding, pursuant to CPLR Article 78, in Supreme Court, New York County. In the following months, by Default Judgment dated September 20, 2018, the Supreme Court (Bluth, J.) defaulted DHR for its failure to appear in two pre-trial conferences, overturned its determination and found in favor of Claimant. Upon DHR's motion, by Decision & Order dated June 5, 2019, the Supreme Court (Bluth, J.) vacated the Default Judgment and reinstated DHR's no probable cause determination. Claimant appealed that determination to the Appellate Division, First Department, which, by Decision and Order dated December 22, 2020, unanimously affirmed the Supreme Court decision, and upheld DHR's determination (see Wiltz v. New York State Div. of Human Rights , 189 A.D.3d 657, 134 N.Y.S.3d 698 [1st Dept. 2020] ).

Following the Appellate Division's decision, Claimant commenced the instant action against the State for alleged wrongdoing stemming from his 2017 DHR complaint, investigation and court proceedings. By Claim filed January 14, 2021, Claimant raises many lengthy and incoherent allegations against DHR including, among others, collusion with NYU to bias their investigation, failure to investigate "key elements of discriminatory harassment scheme" in relation to his eviction, and submitting false statements in the 2019 Supreme Court Article 78 proceedings. In essence, Claimant contends that over the course of this five-year saga, DHR colluded with NYU to "coverup a pattern and practice of substandard and tainted investigations that impeded [Claimant's] rights." The January 14, 2021 Claim lists the date of accrual as ostensibly November 25, 2020, the date DHR allegedly denied Claimant's FOIL request for communications between DHR and NYU that he contends would "rectify the harm [he] suffered from [the] wrongful denial of a fair investigation," though no such request form or denial is annexed to the Claim.

On March 8, 2021, the State through its counsel, the New York State Attorney General's Office, filed a pre-answer Motion to Dismiss the Claim. However, before a ruling could be made in response to the State's Motion and without leave, on April 2, 2021, Claimant purported to file a new Notice of Intention to file a Claim with this Court. Shortly thereafter, on April 9, 2021, Claimant submitted a "Verified Amended Complaint/Claim," and subsequently moved, by Notice of Motion filed April 27, 2021, to force the State to accept his Amended Claim. The Amended Claim and supporting documents contain a newly minted accrual date of January 7, 2021, the date of another alleged DHR FOIL request denial that Claimant insists was "intended to compromise [his] court relief requests." Yet again, Claimant fails to annex any proof of the request or denial to his Amended Claim.

By second Notice of Motion filed on April 29, 2021, the State moves for the dismissal of Claimant's Amended Claim, arguing that the Amended Claim should be dismissed for lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2) and Court of Claims Act §§ 10 and 11, because, among other things, Claimant's listed January 7, 2021, accrual date is incorrect as the alleged wrongdoing by DHR goes back much farther. Specifically, the State argues that documentation annexed to the Claim, Amended Claim as well as Claimant's long-winded accounts point to a 2018 accrual date. Since the Claim was not served on the Attorney General's office until January 13, 2021, the State argues the Claim should be dismissed because it was untimely filed and, thus, is jurisdictionally defective under Court of Claims Act §§ 10 and 11.

On May 26, 2021, Claimant filed an "Affirmation" in Opposition to the State's Motion, arguing that the accrual date is proper because his harm is ongoing, as DHR "continues to perpetuate fraud" by "colluding and conspiring" with NYU. He further argues that a number of statutory provisions extend the Statute of Limitations for his Claim. The State and Claimant's Motions have been sub judice since 2021. Following the retirement of the Hon. Faviola A. Soto, who was presiding over this case, on June 30, 2022, all matters and motions currently pending before her have been reassigned to the Undersigned. Upon reading the papers herein, this Court agrees with the State.

II.

Court of Claims Act § 10(3-b) provides, in part, "A claim to recover damages caused by the intentional tort of an officer or employee of the state shall be filed and served upon the attorney general within ninety days after the accrual of such claim." The provisions contained in Court of Claims Act § 10, addressing the timeliness requirements for claims and notices of intention to file a claim, are jurisdictional prerequisites to maintain an action in this court and therefore must be strictly construed (see Bryne v. State of New York , 104 A.D.2d 782, 783, 480 N.Y.S.2d 225 [2d Dept. 1984] ; Mallory v. State of New York , 196 A.D.2d 925, 926, 601 N.Y.S.2d 972 [3d Dept. 1993] ; Grande v. State of New York , 160 Misc. 2d 383, 386, 609 N.Y.S.2d 512 [Ct. Cl. 1994] ). Pursuant to Court of Claims Act § 11(c), this Court is deprived of jurisdiction if the issue of timeliness "is raised with sufficient particularity by motion or in the answer" by the State ( Firth v. State of New York , 184 Misc. 2d 105, 109, 706 N.Y.S.2d 835 [Ct. Cl. 2000], citing Sinacore v. State of New York , 176 Misc. 2d 1, 9, 671 N.Y.S.2d 896 [Ct. Cl. 1998] ).

It is well-established that a claim or cause of action accrues "when damages are reasonably ascertainable" ( Inter-Power of New York, Inc. v. State of New York , 230 A.D.2d 405, 408, 657 N.Y.S.2d 490 [3d Dept. 1997] ; see White Plains Parking Auth. v. State of New York , 180 A.D.2d 729, 730, 580 N.Y.S.2d 68 [2d Dept. 1992] ; Greenspan Bros. v. State of New York , 122 A.D.2d 249, 250, 505 N.Y.S.2d 173 [2d Dept. 1986] ). This similarly applies even where the alleged wrongdoing is on-going, although damages may be somewhat indefinite (see Otis El. Co. v. State of New York , 52 A.D.2d 380, 380, 383 N.Y.S.2d 920 [3d Dept. 1976] ). When the harm is being progressively litigated, as here, "the general rule is that the mere existence of the right of appeal does not preclude suit and hence does not push back the date of accrual to the expiration of the time to appeal" ( Ferrer v. State of New York , 172 Misc. 2d 1, 9, 655 N.Y.S.2d 900 [Ct. Cl. 1996], citing Karen v. State of New York, 111 Misc. 2d 396, 444 N.Y.S.2d 381 [Ct. Cl. 1981] ; see generally, Reed Co. v. Intl. Container Corp. , 43 F. Supp. 644, 645 [S.D.N.Y. 1942] [applying New York law] ).

Looking at the present case in the context of the foregoing precedent, the State's Motion to dismiss for untimeliness must be granted. Though Claimant has haphazardly filed many pleadings in the present case without leave, for the sake of the inquiry into timeliness, this Court will use the earliest date of January 14, 2021, when Claimant's original Claim was served on the Attorney General, as the date the instant Claim was filed and served. Thus, this case calls on this Court to determine what the proper accrual date is for Claimant's alleged ongoing harm as a result of the purported "discriminatory harassment scheme" put on by DHR in "collusion" with NYU. The prior decision vacating the 2017 DHR finding was favorable to Claimant and at that point, no harm had accrued. But when the DHR determination was reinstated in 2019, Claimant's alleged harm would have been fully ascertainable, and any...