STATE OF NEW YORK COURT OF CLAIMS

JEFFREY MALKAN Plaintiff, CLAIM NO. 117676

-vs-

THE STATE OF NEW YORK, NOTICE OF MOTION FOR SUMMARY JUDGMENT TO DISMISS

Defendant HON..JEREMIAH J. MORIARTY III

MOTION BY: ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, by WENDY E. MORCIO, Assistant Attorney General, attorney for Defendant, State of New York.

TIME, PLACE AND DATE OF HEARING:

Court of Claims of the State of New York, at a motion term thereof at the NYS Court of Claims, 130 S. Elmwood Avenue, Buffalo, New York, on the 14 th day of November, 2012 or at a time determined

by the Court. [Oral argument requested].

RELIEF DEMANDED: A Motion for Summary Judgment, pursuant to CPLR §3212, together with such other and further relief as to this Court may seem just and proper.

SUPPORTING PAPERS: 1. Affidavit of Wendy E. Morcio and Exhibits attached thereto.

THE ABOVE-ENTITLED ACTION IS FOR:

Breach of Contract.

-2­

ANSWERING AFFIDAVITS: If any" are required to be served upon the undersigned no later than two (2) days prior to the return date of this motion pursuant to CPLR 2214(b).

DATED: OCTOBER 25, 2012 BUFFALO, NEW YORK

ERIC T. SCHNEIDERMAN ATIORNEY GENERAL OF THE STATE OF

NEW YORK ATTORNEY FOR DEFENDANT

1uLtJAf.i. '1!UleLDBY: WENDY E. MORCIO Assistant Attorney General,

of Counsel Main Place Tower 350 Main Street, Suite 300-A Buffalo, New York 14202 (716) 853-8476

TO: MARILYN RASKIN -ORTIZ, ESQ. 800 Troy-Schenectady Road Latham, New York 12110-2455

STATE OF NEW YORK COURT OF CLAIMS

.JEFFREY MALKAN,

Claimant

-vs-

STATE OF NEW YORK,

Defendant

CLAIM NO.117676

AFFIDAVIT IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HON. JEREMIAH J. MORIARTY III

STATE OF NEW YORK) COUNTY OF E R IE) SS: CITY OF BUFFALO )

WENDY E. MORCIO, being duly sworn, deposes and says:

1. I am an Assistant Attorney General, of counsel, to ERIC T.

SCHNEIDERMAN, Attorney General of the State of New York, for the above-named

defendant, as such, am familiar with the facts and circumstances of the above-entitled

action.

2. This Affidavit is being submitted on behalf of the Defendant, State of New

York, in support of a motion for summary judgment requesting this Court to dismiss the

Claim. In a two page Claim, it alleges that the Claim of Jeffrey Malkan is based upon

the breach of claimant's contractual rights to employment, as set forth in "Attachment

An , which is expressly incorporated in and made a part of this claim. In breach of those

contractual rights, Claimant's employment was terminated effective August 31, 2009.

Specifically, in a letter dated August 28, 2008 , Cla.imant was notified by Makau W.

Matua, the new Dean of SUNY at Buffalo Law School that his "appointment as Clinical

Professor ending on August 31, 2009 in the Law School will not be renewed. As such,

your last day of work will be May 15, 2009." The claim arose in Buffalo, New York.

(See, a copy of the Claim, dated November 13, 2009, and specifically paragraph

numbered "3", along with a copy of Court of Claims letter, dated December 4,2009,

stating that the Court was in receipt of the Claim as being filed on November 13, 2009,

and assigned Claim No. 117676, attached as Exhibit "A").

3. The Defendant filed an Answer raising particularly the jurisdictional defects

in the failure to serve and file the Claim in a timely manner. In particular, the Answer

raised the defense in that the claim that the claim fails to state a cause of action against

the Defendant, the Court of Claims lacks jurisdiction over the Claim and the Claim failed

to comply with the jurisdictional pleading requirement of Court of Claims Act Sections 9,

10 and 11. (See, Answer, dated December 8, 2009, which is attached hereto as

Exhibit "B").

(I.) Court of Claims lacks subject matter jurisdiction

Claimant's exclusive remedy is the grievance procedure afforded by the collective bargaining agreement.

4. The Claimant does not have a viable cause of action for this labor dispute

in Court of Claims. Article 14 of the Civil Service Law, entitled the Public Employees'

Fair Employment Act of the Civil Service Law is controlling here with respect to an

employee's labor dispute. This statutory authority, along with the Collective Bargaining

Agreement and applicable caselaw foreclose a separate cause of action against the

employer. Consequently, the Court of Claims does not have jurisdiction to resolve this

employment dispute.

5. The Claimant, was a former clinical professor at the State University of

New York at Buffalo, ["SUNY at Buffalo"]. He was originally appointed effective

September 1, 2000 for a three year term and then subsequently with the last

appointment for effective September 6,2007 ending August 31,2009. (See, a copy of

the Appointment Data Sheets, attached hereto as Exhibit "E"). The President's

Appointment Letter sets forth in the terms of the effective dates of the appointment.

The length of the Claimant's appointment was from September 1, 2006 to August 31,

2009 was for $81,492 in the title of "Clin. Assoc. Prof 10". (See, the Appointment Letter

from John Simpson, President of University of Buffalo, dated August 7,2006 and

Attachment to President's Appointment Letter, Appointment Data Sheet, signed by

Claimant on 9/21/2006, attached as Exhibit "E") . Then subsequent to that appointment,

there was another President's Appointment letter, dated October 16, 2007, with

Appointment Data Sheet for term of September 6, 2007 ending August 31, 2009 with

annual salary of $95,800 as title "Clin. Prof. 10". (See, Exhibit "E") .

6. Claimant was a member of the a bargaining unit, United University

Professions "UUP" (Affiliations: New York State United Teachers and Local 2190

American Federal of Teachers, AFL-CIO) and had entered into a collective bargaining

agreement [Agreement]. Pursuant to that Agreement, Claimant filed a grievance for the

non -renewal of employment as a clinical profession. In accordance with the

Agreement, the UUP filed an improper employer charges on behalf of the grievant

Claimant, with the Public Employment Relations Board, hereinafter referred to as "

PERB", alleging violations of Labor Law Section 209 for his alleged wrongful termination

from employment at SUNY Law School. (See, part of Exhibit "C" the Charge, bate

•

stamped pages "000003" to "000007").

7. The PERB action which is presently being litigated is based upon the non ­

renewal of his appointment as clinical professor [see paragraph "21" of the Charge,

stamped "000006"] (See also, a pertinent section of the Claimant's Responses to

Notice of Discovery, attached as Exhibit "C", which included the Improper Practice

Charge first page of the Agreement between the State of New York and United

University Professions dated July 2,2007 - July 1, 2011, referred to hereinafter as the

"Agreement" , page "000008" and excerpts the PERB Hearing to commence on

November 17, 2009 , stamped "000017" to "000019") (See, also the Collective

Bargaining Agreement attached as Exhibit "0").

8. The Article 7.1 of the Agreement sets forth that the purpose of this Article

is to provide a prompt and efficient procedure for the investigation and resolution of

grievances. The orderly process hereinafter set forth shall be the sole method for the

resolution of grievance. In addition, the Agreement specifically states that the decision

and award shall be final and binding upon the State, UUP and the grievant to the extent

permitted by provisions of this Agreement and applicable law. (See, page 7 of Article 7

Section 7.1 and page 10, Section 7.7 entitled "procedures Applicable to Arbitration

(e). Effect of Decision and Award" of the Agreement, attached hereto as Exhibit "0",

specifically page 10).

9. In absence of clear grant to public employment relations board to enforce

statutory rights of teachers, statutory rule of construction expression unius est exclusio

alterius requires that statutory remedies provided in this article [Article 14 of Civil

Service Law] are exclusive. Helsby v. Board of Ed., Central School Dist. No.2 of Town

of Claverack, 34 Ad2d 361, 312 NYS2d 355.

10. When employer and union enter into collective bargaining agreement

(CBA) that creates a grievance procedure, employee subject to CSA may not sue

employer directly for breach of CSA, but must proceed, through the union, in

accordance with contract. Wolfson v. Prevention Medicine Clinical Services (4th Dept.,

2006),26 AD 3d 751,809 NYS2d 322. Pursuant to state university's collective

bargaining agreement (CSA), which governed medical practice of which doctor was

member by virtue of his employment agreement with university, CSA's grievance

procedure, including arbitration was sole remedy involving his compensation from

medical practice and therefore, could not seek redress in another forum Wolfson v.

Prevention Medicine Clinical Services, 26 AD3d 751, 809 NYS2d 322 (Fourth Dept.,

2006) .

11. In Wolfson, the Court dismissed the complaint in an action seeking share of

partnership proceeds of medical practice of which plaintiff was a member by virtue of his

employment agreement. Pursuant to the terms of an agreement of the United

University Professions (UUP), section 7.1 provided that the grievance process shall be

the sole method for resolution of grievance. The Court held that the grievance

procedure, including arbitration is the sole remedy provided to plaintiff concerning

issues involving his compensation and thus, plaintiff may not seek redress in another

forum.

12. Grievance procedures have long been recognized as serving the interest of

all parties involved in collective bargaining. They enable the union to participate in

administering the contract it negotiated; they aid the employer by channeling grievances

into one forum providing one set of remedies; and they permit efficient protection of

employee rights (Republic Steel v. Maddox, 379 US 650, 653). They are Congress'

"preferred method for settling disputes and stabilizing the "common .Iaw" of the plant.

(Id.) Allowing individual employees to circumvent the grievance procedure in favor of

other remedies as a general matter would impair those interest, deprive the parties of

the opportunity to establish a uniform and exclusive method for orderly settlement of

employee grievances,' and inevitably exert a disruptive influence upon the negotiations

and administration of collective agreement. (Id.) Teamsters Local v. Lucas Flour Co.,

369 US 95, 103), cited in Matter of Board of Educ. Commack Union Free School Dist. v.

Ambach, 70 NY 501, 522 NYS2d 831 (1987).

13. The Court of Appeals has held that as follows

"As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract. Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer."

Matter of Board of Educ., Commack Union Free School DisC v. Ambach, 70 NY2d 501, 508 (1987).

14. Likewise, the Fourth Department upheld the Court of Claims' granting of

the Defendant's summary judgment and dismissal the professor's breach of contract

claim, who was also a member of United University Profession "UUP". Yoonessi v.

State of New York, 289 A.D2d 988, 735 NYS2d 900 (2001). In Yoonessi, Claimant

commence this action against the Defendant, his former employer, alleging that the

defendant breached the collective bargaining agreement between the Claimant's union,

the UUP. The Court of Claims properly granted the defendant's summary judgment

motion, dismissing the claim. It is well settled that, "when an employer and union enter

into collective bargaining agreement that creates a grievance procedure, an employee

subject to the agreement ma not sue the employer directly for breach of that agreement,

but must proceed through the union, in accordance with the contract." (See,

Yoonessi, citing Matter of Board of Educ. v. Ambach, 70 NY2d 501,508, cert denied

sub nom. Margolin v. Board of Educ., 485 US 1034). An exception arises where the

employee alleges that the union breached its duty of fair representation, relying upon

Ambach.

15. In reliance upon the Court of Appeals, recently the Court of Claims granted

the State's summary judgment motion and dismissed a claim wherein an employee at

Lincoln Correctional Facility, under the "DOCCS" alleged that other DOCCS employees

had falsified her time and attendance records and had harassed and retaliated against

her at work. (See, Munroe v. State of New York, Claim No. 19580, Motion No. M­

81481, Ct. Claims Judge Alan C. Marin, decision dated July 9, 2012 and filed August

22,2012). Analogous to our case, Claimant in Munroe filed an extensive administrative

proceedings under her collective bargaining agreement. Equally so, she did not take

issue with CSEA's representation of her. The Court ruled that Munroe's remedy was to

proceed through the processes set forth in her collective bargaining agreement (and

thereafter, if applicable, court review under Section 7511 of the Civil Practice Law and

Rules). (See, Munroe, at p. 2)

16. Similarly, a medical resident challenging his or her termination from a

residency program may not circumvent the administrative procedure specified in Public

Heath Section 2801, by bringing a breach of contract action. Indemini v. Beth Israel

Medical Center, 4 NY 3d 63, 790 NYS2d 625.

17. The plain reading of the statute, within Civil Service Law Section 209

mandates that this employment dispute, as set forth in this claim must be addressed

through collective bargaining and thus, PERB action is the Claimant's exclusive remedy.

Note, that the proper remedy for a review of the collective bargaining (CBA) is through

an Article 78 proceeding. (See, Civil Service Law 213)

18. Civil Service Law 213, specifically states as follows (a) Final orders of

the board made pursuant to this article shall be conclusive against all parties to its

proceedings and person who have had an opportunity to be parties to its proceedings

unless reversed or modified in proceedings for enforcement or judicial review as

hereinafter. Final orders shall be (i.) reviewable under article seventy-eight of the civil

practice law and rules upon petition filed by an aggrieved party within thirty days after

service by registered or certified mail of a copy of such order upon such party and (ii)

enforceable in a special proceeding, upon petition of such board, by the supreme court,

provided, however, that an order of the board which determines whether an employer

or employee is subject to this article may be deemed final when made. (See, Civil

Service Law Section 213.) (See, In re City of Binghamton, (Binghamton Firefighters

Local 729, (AFL-CIO) (3 Dept., 2005) 20 AD3d 859, 799 NYS2d 614. )

19. Moreover, based upon the appellate authority, [the Court of Claims) has

consistently held that where statute provide a method for review of adjudications by

administrative agencies, they must followed. A collateral review may not be sought

under the guise of a claim for money damages" (see, Lublin v. State of New York, 135

Misc. 2d 419, 420, affd. 135 AD2d 1155, Iv. denied 71 NY2d 802; see also, Vaughn v.

State of New York, Ct. CI., Claim No. 99030, Motion No. M- 58387 [Read,P.J.],

December 23, 1998, cited in Mc Bride v. State of New York, Ct. CI. Claim No. 107560,

Motion M-66786, Judge Richard E. Sise, decision dated November 25,2003.

Accordingly, the Court ruled that the Court of Claims lacks subject jurisdiction over the

Claim, citing Kitchner v. State of New York, 82 Misc. 2d 858.

20. In Mc Bride v. State of New York, Claimant sought denial of

unemployment insurance benefits by the Unemployment Insurance Appeal Board.

Defendant maintained that this Court lacked subject jurisdiction as the exclusive

procedure for reviewing determinations of the Unemployment Insurance Board under

Labor Law Section 626, and the proper remedy was by an appeal to the Appellate

Division and not the Court of Claims.

21. Here, analogous to Labor Law 626 which dictates the disputes of

unemployment benefits, the applicable law here, to wit, Civil Service Law 213, provides

that orders shall be conclusive against aI/ parties and reviews of board decision, shall

be made pursuant to Article 78 in Supreme Court. This mandate set forth in Civil

Service Law Section 213, cannot be overridden by the Claimant's attempt to frame or

otherwise couch this claim into a breach of contract action. This Claim is based upon

his non renewal of employment with SUNY for which the Claimant already has a

mechanism in place for the adjudication of his rights under the Collective Bargaining

Agreement. Additionally, while clothed as an action for monetary damages, the

essence of the challenge to a determination of any agency must be brought generally

by way of an Article 78 proceeding (and not in this court) and within four months see

CPILR 217. The Court have specifically dismissed such a collateral attack on the

administrative process with PERB.

22. Likewise, the Court of Claims dismissed a claim where the Claimant

alleged that she was wrongfully terminated from State employment at DOCCS. Riddick

v. State of New York, Ct. CI. , Claim No. 120069, Motion M-80460., Judge Thomas H.

Scuccimarra, decision dated January 13, 2012. Claimant was a member of a collective

bargaining unit, Professional, Scientific and Technical Services [PEF], that had entered

into a collective bargaining agreement with the State. The collective bargaining

agreement had provided also that the arbitrator's decision to be final and binding. In an

pre-action motion, Defendant soughtdismissal upon the resolution of controversy by

arbitration and award, subject to further review only in State Supreme Court. [See Civil

Practice and Rules Section 3211 (a) "(2) and (5); 7511 (a) and (b).]

23. The Court ruled that the claim was attempting a vacate the arbitrator's

award essentially re-try the case. Article 75 of CPLR confers jurisdictional concerning·

arbitration on the courts of the state. [CPLR 7501]. The Court of Claims is a court of

limited subject matter jurisdiction with specifically listed parameters provided by statute.

24. Both the language in the statute and the Collective Bargaining Agreement

mandate that such employment disputes are to be resolved by binding arbitration before

the PERB and that the appeal of that decision shall be brought pursuant to an Article 78

proceeding to Supreme Court. The PERB decision would be binding upon the

Defendant and Claimant. What the Claimant is attempting to do here in circumvent the

long standing principles of labor law, civil service law and the well established process

already set for resolution of employment disputes.

25. Here, Claimant has filed a grievance with PERB for the non· renewal of

employment as a professor. Article 7 of the CBA, set forth the grievance procedure to

which Mr. Malkan has fully availed himself to this process and is still subject to the

arbitration process afforded to the Mr. Malkan through his union representation by UUP.

26. Although the Claim's legal theory is based upon breach of contract in

reliance upon a IIletter", it is really nothing more ultimately a challenge of the

administration agency for a review of which the procedure is an Article 78 proceeding.

It a collateral attack on the collective bargaining agreement process and the claim is

essentially equitable in nature. The Claimant cannot circumvent the civil service rules,

by it couching this claim as a some type of private contract action upon a " letter", rather

than the Collective Bargaining Agreement.

27. The Claimant does have a contract and simply put, the contract is called

Collective Bargaining Agreement, "CBAII, not the letter of R. Nils Olsen. The Claimant

was undoubtedly a member of the union, "UUP" and is consequently bound by the

Collective Bargaining Agreement which is the contract. It is the terms and conditions of .

the CBA and his reliance upon the CBA that which will ultimately determine the issue of

non renewal as a professor. The CBA is an comprehensive contract, comprising of one

hundred and twenty two pages which is controlling here for adjudication of non

renewal. The CBA provides an exhaustive list of benefits, representations, privileges,

procedural remedies and adjudication of issues relating to appointment, evaluation,

non· renewal and promotion of employees. The CBA would be the controlling

document on these issues. The Claimant has already availed himself of the grievance

process under the CBA The notion that of there a separate contract, [Claimant's

reliance upon the letter of R. Nils Olsen] apart from the CBA, runs afoul with the long

established principles of statutory scheme of Article 14 of the Civil Service Law. In

affect, the pursuit of litigation of this claim here would undoubtedly involve this Court

interpreting the CBA since CBA specifically includes provisions for appointment and

non-renewal of employees. This Claim based upon a breach of contract is contrary

with Court of Appeals in Commack and Fourth Dept. in Wolfson and Yoonessi.

28. The Court of Claims has long hold that regardless of how a Claimant

categorizes a claim, it is whether the claim would require to review of an administrative

agency's determination- which the Court of Claims has no subject matter jurisdiction to

entertain. (see also, Hoffman v. State of New York, 42 AD3d 641, 642 [2007], as a

review of such determinations are properly brought only in Supreme Court in a CLPR

Article78 proceeding. Matter of Scherbyn v. Wayne-Finger Lakes Bd. Of Coop. Educ.

Services., 77 NY2d 753, 757 [1991].

29. It is well settled that the Court of Claims 'has jurisdiction to grant strictly

equitable relief,' but may grant incidental equitable relief so long as the primary claim

seeks to recover money damages in appropriation, contract or tort cases" (City of New

York v. State of New York, 46 AD3d 1168,' 1169 [2007], Iv. denied 10 NY3d 705 [2008]

quoting Pscay v. Duryea, 306 NY 413, 416 [1954]; see also Ozanam Hall of Queens

Nursing Home v. State of New York, 241 Ad2d 670, 671 [1997]. In order to determine

whether the Court has jurisdiction, two inquires are necessary: U[w] hether the essential

nature of the claim is to recover money, or whether the monetary relief is incidental to

the primary claim" (Matter of Gross v. Perales, 72 NY2d 231, 236 [1988]; see also

Madura v. State of New York, 12 AD3d 759, 760 [2004], Iv. denied 4 NY3d 704 [2005].

and regardless of how a claimant categorizes a claim ... whether the claim would

require review of an administrative agency's determination on which the Court of Claims

has no subject matter jurisdiction.

30. The fact, that Claimant has clothed as action for monetary damages, it does

not change the fact, that Claimant is challenging the decision of SUNY's non- renewal of

his appointment as clinical professor. The review of the decision by PERB handled

administratively through the arbitration process would be an Article 78 proceeding. The

adjudication of the claim appears to hinge upon the propriety of the non renewal of the

employment as a clinical professor and the request for back pay is ancillary to and

dependent upon those determination. The Claim for his non renewal as a clinical

professor and seeking back pay and future pay for anticipatory employment, which is

ancillary to the propriety of his non renewal. Such review is essentially equitable in

nature and beyond the jurisdiction of the Court. (See, Madura v. State of New York, 12

AD3d 759 [2004].

31. In addition, these allegations clearly refer to administration determination

made by Claimant would directly depend upon a finding in a CLPR 78 proceeding in

Supreme Court and that agency's determination were arbitrary and capricious, an abuse

of discretion and not rationally based. (see also, City of New York v. State of New York,

46 AD3d 1168 (2007). Defendant respectfully submits that this action be dismissed

upon the lack of subject matter jurisdiction.

II. The Claim is untimely as the alleged breach occurred on or about August 28, 2008.

32. In the alternative, in the event that the Court were to entertain the alleged

contract theory based upon the R. Nils Olsen's letter, dated October 19, 2006, the

Defendant respectively submits that the Claim is untimely and should be dismissed.

The Court of Claims Act 10 (4) requires that a Claim for breach of contract, express or

implied to be filed and served upon the Attorney General within six months after the

accrual of such claim, unless the Claimant served a Notice of Intention, in which the

Claim must be filed and served upon the attorney general within two years after such

accrual. The instant Statement of Claim was never served until or about November 16,

2009 and filed on November 13, 2009, some nine months after the expiration of the six-

month filing period. Those time limits are jurisdictional in nature, and are to be strictly

construed (Alston v. State of New York, 97 NY2d 159 [2001].

33. Here, the "accrual" of the alleged action for breach of an employment

agreement would run from the date of receipt of the letter of Dr. Makau W. Mutua, to

wit, on or about August 28, 2009. There is no question that the Claimant

acknowledged notification of the letter. At the PERB hearing, claimant also testified that

he received that non renewal letter from Makau on or about August 28,2008 (See,

Claim paragraph "3", Exhibit "A" and see page bate stamped" ", part of Exhibit "C" ).

34. In an analogous claim, the Court of Claims ruled that the accrual of a

termination of employment was "when the notice given to the claimant that he would not

be reappointed", as an Assistant Professor at SUNY. Syrkin v. State of New York,

Claim No. 110738, Motion No. M- 71122 and CM ~71179, Court of Claims Judge

Thomas H. Scuccimarra, decision dated April 5, 2006 and filed April 17, 2006. The

Court granted the Defendant's motion for summary judgment based upon the

Claimant's failure to timely serve a< Claim. Claimant in Syrkin was not reappointed to his

position as a Assistant Professor in Science Department at SUNY, In the Claim, he

indicated that on or about May 9, 2002, he was informed that his appointment-that was

due to expire on August 31, 2003-would not be renewed. Claimant alleges that he was

not reappointed due to effort to increase percentage of female professors in the

department and based Claim upon discrimination. Thereafter, Claimant alleges that on

or about November 14, 2003, a reviewing committee convened pursuant to the

collective bargaining agreement and sent a report to the Chancellor that there was no

financial exigency and recommending reappointment.

35. In Syrkin the Court specifically rejected the Claimant's argument on the

later accrual date. It held that, "Notwithstanding the fact, that the claim alleges an

accrual date of August 31,2003 [end of expiration of appointment]", the Court of Claims

ruled that the by application of the pertinent law on accrual, it is ready seen that the

Claim accrued on May 5,2003, when notice was given that the Claimant would not be

reappointed, for allegedly illegal reasons and dismissed the Claim.

36. In Syrkin, the Court of Claims reasoned that "having elected·to proceed in

the Court of Claims [see, Koerner v. State of New York, 62 NY2d 442 (1984)], claimant

is bound by the time constraints presented, as opposed to the more generous ones that

might have been available in State Supreme Court. Brown v. State of New York, 125

AD2d 750 (3d Dept., 1986); Figueroa v. State of New York, 126 Misc. 2d 304 (Ct. CI.

1984); see also Clancy v. State of New York, 126 Misc. 2d 292 (Ct. CI. 1984).

Accordingly, the Court granted Defendant's motion to dismiss.

37. To the extent that the Court were to consider the Claimant's argument on a

contract basis, the "accrual" of the claim is measured from the letter of Dean Makau W.

Mutua, dated August 28,2008, wherein he stated that the appointment of Claimant will

not be renewed. (See, see paragraph "3 II of Exhibit "A" [Specifically, in a letter dated

August 28, 2008, Claimant was notified by Makau W. Mutua, the new Dean of the

SUNY at Buffalo Law School that "his appointment as Clinical Professor ending August

31,2009 in the Law School will not be renewed. Note, specifically, that in paragraph

"21" of the Improper Employee Charge, Claimant acknowledged receiving this letter on

or about August 28,2009. (See, Exhibit "C", the Charge and Claimant's testimony on

page 70).

38. Thus, for the Claim to have been considered timely, the Claim must have

been received no later than February 28, 2009. The Claim was not served upon the

Defendant until November 16, 2009, well beyond the six month statutory time. (See, a

copy of the Claim, dated November 13, 2009, attached as Exhibit "A" and Defendant

raised this jurisdictional defect in its Answer, see Exhibit "B"). Therefore, the claim is

untimely and should be dismissed on this grounds, as well.

III.) Proposed Notice of Claim fails to comply with Court of Claims Act 11

39. The Court of Claims Act's requirements as to service of a Notice of Claim

are jurisdictional and must be strictly construed. Park v. State of New York, 226

AD2d 153,640 NYS2d 100, 101 (1996); Dreger v. State of New York Thruway

Authority, 81 NY2d 721, 724, 593 NYS2d 758, 759 (1992); Lurie v. State of New York,

73 AD2d 1006, 1007,423 NYS2d 969, 970, Aff'd. 52 NY2d 849, 437 NYS2d 77 (1980).

The Court of Appeals in Dreger held that the failure to properly serve the Attorney

General precluded a wrongful death claim.

40. If the original document does not include all that is essential to constitute a

claim, the document is jurisdictionally defective. (Grande v. State of New York, 160

Misc. 2d 383). The claim is subject to dismissal and "a lack of prejudice to the State is

an immaterial factor". (Byrne v. State of New York, 104 AD2d 782, 784, Iv. den. 64

NY2d 607).

41. In the alternative, if the Court were to consider the merits of a contract

action, the Defendant will address the jurisdictional flaws, as well. In examining the

proposed Notice of Claim, it is defective on it's face in that it does not comply with

statutory requirements of 11 of the Court of Claims Act. The Court of Claims 11 (b)

requires that the Claim shall state the time when and place where such Claim arose, the

nature of same, and the times of damage or injuries claimed to have been sustained

and, except in an action to recover damages for personal injury, medical, dental or

podiatric malpractice or wrongful death, the total sum claimed.

(a.) Proposed claim is conclusory in nature

42. Firstly, the Claim, does not address the merits, except as to merely

summarily and in a conclusory fashion state that the Claim is for a breach of contract.

The Courts have dismissed proposed claims on the conclusory and vague averments to

support promises in a contract action. Pecoraro v. New York State Department of

Environmental Conservation Division, Claim No. 114090, Motion Nos. M -74286 and

CM-74563, Court of Claims Judge Ruderman decision dated December 15, 2008 and

filed January 26,2009. In Pecoraro, the underlying Claim arose out of an alleged

contract with the State which resulted in damages to Claimant's property. In support of

the motion in an attempt to show a promissory agreement, the Claimant submitted

correspondence from DEC. The Court found that the correspondence did not establish

a promissory contract. As such, the Claimant did not establish the appearance of merit.

Additionally, the Court denied the action promissory estoppel since it is not available

against a governmental entity.

43. Thus, the Claim should be dismissed due to the deficiencies of the Claim in

failing to satisfy the requirements of Court of Claims Act, including, accrual date of the

breach of contract and the unsubstantiated conclusory nature of the allegations of a

purported contract with the State.

44. To properly plead causes of action of breach of contract, the claim must

be pled with specificity (767 Third Ave. LLC v. Greble & Finger. LLP, 8 AD3d 75. The

Claimant must allege which portions of the contract were breached, the failure to do so

is fatal to its cause of action for breach of contract. Fish Bait Company, LLP v. State of

New York, Ct. CI., Claim No. 114588, Motion No. M-74694, Judge James J. Lack,

decision dated June 27,2008.

45. There are a number of deficiencies in the Claim. The Claim failed to

alleged the portions of the alleged and purported contract that were violated here by the

Defendant. The Claim is summarily contained within two page document, which merely

attached the R. Nils Olsen letter, the excerpts of ABA standards for 2005-2006 and

computations of damages.

46. The Claim did not state what portion of the a<lIeged contract was

applicable and what element (s) or condition (s) were supposedly violated by the

Defendant. Nor did the Claim state how, when or what was breached by the Defendant,

either. The Claimant simply attached a letter without any references to the what was

supposedly breached by the Defendant. The attachment of excerpts of the ABA

standards was equally deficient to satisfy the jurisdictional requirements of Court of

Claims Act Section 11, as well.

47. It is not the burden of the Defendant to try to ascertain and construe the

elements of the cause of action, but rather it is the duty of the Claimant to meet the

mandatory elements with Court of Claims Act Section 11. The Court has noted the

H[t]he Court of Claims Act does not require [defendant] to ferret out or assemble

information that obligates the Claimant to allege. (See, Rivera v. State, 52 AD3d 1075

[2008]). This claim leaves the State to try to ferret out that what obligates the claimant to

allege and has failed to do, here. There are jurisdictional requirements for which the

Claimant has failed to comply here.

48. Questions of subject matter jurisdiction may be raised at any time, and

even by the Court sua sponte (see Signature Health Ctr., LLC v. State of New York, 42

AD3d 678, 679 [2007], The Court of Appeals' language provides that the Defendants

are under no obligation to ferret out or assemble the information that section 11 (b)

requires Claimant to set forth within their pleading (See Lepkowski, NY3d at 208).

Thus, based upon the conclusory nature of the Claim and the failure of the Claim to

satisfy the jurisdictional requirements, the Defendant submits that the Court should

dismiss this claim.

(b.) The Claim lacks an accrual date.

49. There is another deficiency to the Claim, as well. There is no date for the

alleged breach of contract set forth in the Claim. Although the proposed Claim provides

background referring to letters, and some chronology of events, it did not specify the

date of the alleged breach. Such recitation of the dates of the alleged breach of

contract is necessary pursuant to the Court of Claims 11 and the Court has dismissed

claims on this basis.

50. In the two page Claim, dated November 3,2009, it merely states "in reach

of those contractual rights, Claimant's employment was terminated effective August 31,

2009, yet never states "when" the breach occurred and merely attached a letter dated

October 19, 2006. Then the very next sentence in the Claim states, "Specifically, in a

letter dated August 28, 2008, Claimant was notified by Makau W. Matua, the new Dean

of the SUNY at Buffalo Law School, that his "appointment as Clinical Professor ending

on August 31; 2009 in the Law School will not be renewed. As such, your last day of

work will be May 15, 2009. The claim arose in Buffalo, New York (See, paragraph

numbered"3" of first page of the Claim, attached as Exhibit "A" ). The Claim does not

state the date of the breach. The failure to include all that is required renders the Claim

jurisdictionally defective.

51. The Defendant respectively submits that the Court should grant the

Defendant's motion for summary judgment on the following grounds: (1) The Court of

Claims lacks subject jurisdiction since the Collective Bargaining Agreement is the

remedy for resolution of the labor dispute; (2) This is nothing more than a challenge of

for which an Article 78 procedure is the remedy; (3) The Claim is untimely as the

alleged breach occurred 011 or about August 28, 2008; (4) The Claim is jurisdictional

flawed in that fails to comply with Court of Claims Act Section 11; and (5) Fails to state

a cause of action in that it is conclusory in nature and fails to comply with Court of

Claims Act.

WHEREFORE, your deponent respectfully requests that this Court grant

Defendant's Motion for Summary Judgment and dismiss this Claim, and as other relief

as deemed necessary.

Sworn to Before Me This 26 Ih day of October, 2012.

Assistant Attorney Generai of the State of New York,

with the general powers of a Notary Public. pursuant tc Section 73 of the Executive

Law of thtt Stlih~ of Naw York