Thomas v Port Auth. of N.Y. & NJ

Annotate this Case

Download PDF

Thomas v Port Auth. of N.Y. & NJ 2017 NY Slip Op 31114(U) May 19, 2017 Supreme Court, New York County Docket Number: 150911/2016 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 05/22/2017 11:57 AM 1] NYSCEF DOC. NO. 20 INDEX NO. 150911/2016 RECEIVED NYSCEF: 05/22/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYNE. FREED PART 2 Justice ----------------------------------------------------------------------------X WILLIAM THOMAS INDEX NO. 150911/2016 Plaintiff, MOTION DATE MOTION SEQ. NO. - v- · 001 PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DECISION AND ORDER Defendant ------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 were read on this application to/for Dismissal Upon the foregoing documents, it is ordered that the motion is granted. In this breach of contract action by plaintiff William Thomas, defendant Port Authority of New York and New Jersey ("the PA") moves, pursuant to CPLR 321 l(a)(2) and (a)(7), to dismiss the complaint. After oral argument and a review of the parties' papers and the relevant statutes and case law, this Court grants the motion. Plaintiff, a police officer for the Port Authority Police Department ("P APD"), applied to become a Sergeant in the P APO in 20 I 0. He passed a written examination and was placed on a roster of 150911/2016 THOMAS, WILLIAM J. vs. PORT AUTHORITY OF NEW YORK Motion No. 001 1 of 4 Page 1 of4 [*FILED: NEW YORK COUNTY CLERK 05/22/2017 11:57 AM 2] NYSCEF DOC. NO. 20 INDEX NO. 150911/2016 RECEIVED NYSCEF: 05/22/2017 candidates. He is employed by the P APO pursuant to a Memorandum Agreement ("the MA") between the PA and the Port Authority Benevolent Association. In a memorandum to plaintiff dated December 7, 2011, the P APO advised the latter that, on December 1, 2011, the Civilian Complaint Review Board reviewed a civilian complaint made against him and sustained a charge alleging that he was out of uniform. On November 21, 2012, the PAPD issued a Promotion Opportunity Announcement ("POA'') advising PA police officers that it was seeking qualified candidates for Sergeant positions. The POA stated, inter alia, that such a candidate had to be "[f]ree of sustained civilian complaints in the last 12 months (i.e., 11/2/11-11/2/12)." By correspondence dated February 4, 2013, the Human Resources Department of the PA advised plaintiff that he was not qualified to be promoted to Sergeant because he did "not meet the Civilian Complaint requirement(s)" set forth in the November 21, 2012 POA. On September 14, 2015, plaintiff filed a notice of claim against the PA in which he represented that he would be commencing an action against that entity seeking "to redress the improper denial of his promotion to the rank of Sergeant." On February 3, 2016, plaint} ff commenced the instant action seeking damages for breach of contract by filing a summons and complaint with this Court. On June 2, 2016, plaintiff filed an amended complaint against the PA. On June 8, 2016, plaintiff stipulated to allow the PA until July 22, 2016 to answer or otherwise move against the complaint. On July 22, 2016, the PA filed the instant motion seeking dismissal of the 150911/2016 THOMAS, WILLIAM J. vs. PORT AUTHORITY OF NEW YORK Motion No. 001 2 of 4 Page 2 of4 [*FILED: NEW YORK COUNTY CLERK 05/22/2017 11:57 AM 3] NYSCEF DOC. NO. 20 INDEX NO. 150911/2016 RECEIVED NYSCEF: 05/22/2017 amended complaint pursuant to CPLR 3211 (a)(2) (lack of subject matter jurisdiction) and (a)(7) (failure to state a cause of action). An action against the PA must be "commenced within one year after the cause of action therefor shall have accrued" and a notice of claim must be served on the PA "at least sixty [60] days before such suit." N.Y. Unconsol. Law§ 7107. The timing requirements set forth in the statute are jurisdictional, and a plaintiffs failure to file his or her lawsuit within the prescribed time period "compels the dismissal of the action for lack of subject matter jurisdiction." Caceres v Port Auth. of NY and NJ, 631 F.3d 620, 624-25 (2d Cir 2011) quoting Lyons v Port Auth. of NY and NJ., 228 AD2d 250, 251 (I 51 Dept 1996). Here, it is evident that plaintiffs claim accrued on February 4, 2013, at which time he was advised that he did not qualify for promotion because he did not meet the civilian complaint requirement set forth in the POA. However, he did not commence the instant action until February 3, 2016, almost exactly three years later. Thus, the PA's motion must be granted pursuant to CPLR 3211 (a)(2) since this Court lacks subject matter jurisdiction over the controversy. See Caceres v Port Auth. of NY and NJ, 631 F.3d 620, 624-25; Lyons v Port A uth. of NY and NJ., 228 AD2d 250, 251. Plaintiff maintains that his claim is not time-barred because the PA has committed "an ongoing breach that has been used to deny [him a] promotion to Sergeant in every class of candidates that has been considered since the [POA]" was issued in November of 2012. First, plaintiffs contention is utterly conclusory. Further, his allegation that the PA had a continuing duty to 150911/2016 THOMAS, WILLIAM J. vs. PORT AUTHORITY OF NEW YORK Motion No. 001 3 of 4 Page 3 of4 ------- [*FILED: NEW YORK COUNTY CLERK 05/22/2017 11:57 AM 4] NYSCEF DOC. NO. 20 INDEX NO. 150911/2016 RECEIVED NYSCEF: 05/22/2017 consider plaintiff for promotion is belied by the POA itself, which prohibits from promotion, inter alia, individuals against whom civilian complaints were sustained between November 2, 2011 and November 2, 2012. See Henry v Bank ofAm., 147 AD3d 599, 601 (I st Dept 2017) citing Bulova Watch Co. v Celotex Corp., 46 NY2d 606, 611 (1979). Since plaintiff has, at most, alleged a breach of "one discrete contract", i.e., the MA, during a discrete time period, there was no breach of a recurring duty. See Kahn v Koh/berg, Kravis, Roberts & Co., 970 F2d 1030, 1041 (2d Cir 1992), cert denied 506 U.S. 986 (1992). In light of the foregoing, it is hereby: ORDERED that the motion by the defendant Port Authority of New York and New Jersey is granted and the complaint is dismissed in its entirety, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further, ORDERED that this constitutes the decision and order of the Court. 5/19/2017 DATE CHECK ONE: CASE DISPOSED GRANTED D NON.FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT D D OTHER REFERENCE ' .HON. KATHRYN FP..-ZED 'RJSTICE OF SUPP.:2,ill C00"~T 150~11/2016 THOMAS, WILLIAM J. vs. PORT AUTHORITY OF NEW YORK Motion No. 001 4 of 4 Page 4 of4 >

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.