Lynn v State of New York

[*1] Lynn v State of New York 2021 NY Slip Op 51151(U) Decided on November 23, 2021 Court Of Claims Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 23, 2021
Court of Claims

Thomas Lynn, Claimant

against

State of New York, New York State Insurance Fund, Defendants



UID: 2021-054-042



Claimant's attorney:

RAYMOND NARDO, ESQ.

Defendant's attorney:

HON. LETITIA JAMES

Attorney General for the State of New York

By: Rachel Zaffrann, Deputy Assistant Attorney General
Walter Rivera, J.

The following papers numbered 1-4 were read and considered by the Court on movant's [*2]late claim application:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits 1

Attorney's Affirmation in Opposition 2

Amended Affirmation in Opposition Filed October 6, 2021 3

Movant's Exhibit 4 Attachments Exhibits A-D, Filed November 1, 2021 4

Text of the decision:

Movant brings this application for late claim relief pursuant to Court of Claims Act § 10 (6)[FN1] . The proposed claim arises out of an alleged incident that occurred on June 10, 2020, during movant's employment as an Auditor 1 with the New York State Insurance Fund (NYSIF) (Movant's Ex. 1). Movant and four co-workers, John Varghese, Israel Macias, Nazmoon and Abdullah Mahbub, attended a staff meeting via Skype, with a supervisor, Audrey Tyson, an Auditor 2. During the meeting, the supervisor allegedly asked movant, "[d]o you date males or females?" (id. at ¶ 2).

Background

On December 15, 2020, movant filed an Employment Discrimination Complaint Form against NYSIF with the Westchester County Human Rights Commission (WCHRC) alleging a violation of Westchester County Human Rights Law § 700.03 (a) (Movant's Ex. 2). By letter dated December 15, 2020, WCHRC notified NYSIF of the filed complaint and directed NYSIF to submit a Position Statement and all supporting documentary evidence responding to the allegations of the complaint (Movant's Ex. 3).

NYSIF responded by statement dated January 15, 2021with supporting documentation (Movant's Ex. 4). NYSIF denied the allegations of the complaint and maintained that WCHRC did not have jurisdiction over NYSIF or its employees because NYSIF is a State agency. The response also stated that:

"the New York State Governors Office of Employee Relations Anti-Discrimination Unit is responsible for investigating all complaints of employee discrimination at New York State agencies. They investigated the allegations raised in the complaint. NYSIF did not investigate the allegations raised in the complaint"

(id. at p 3, ¶ 5). Additionally, the statement provided that "NYSIF does not have any complaints or allegations against NYSIF or Ms. Tyson alleging discrimination based upon sexual orientation within the past two years" (id. at ¶ 6).

There were no recordings or documentation of the June 10, 2020 Skype meeting (id. at ¶ 3). NYSIF attached to its statement an affidavit of Tyson wherein she denied asking movant during the meeting "if he dates men or women or males or females or any question along those lines" (id. at Attachment Ex. A). Additionally, NYSIF's response stated:

"[a]ccording to interviews conducted by the New York State Governor's Office of Employee Relations Anti-Discrimination Unit, Ms. Nazmoon stated she does not recall hearing anything personal on the Skype call. Mr. Varhese stated he was on the Skype call for the entire duration and he did not hear Ms. Tyson ask Mr. Lynn the question at issue. [*3]Mr. Marcias stated he does not recall hearing Ms. Tyson ask Mr. Lynn whether he dates men or women because he doesn't pay attention to conversations not related to work. Mr. Mahbub stated he did not hear the question"

(id. at p 4).

On April 28, 2021, WCHRC issued an Order of Administrative Dismissal on the basis that WCHRC lacks jurisdiction over the matter (Movant's Ex. 5).

Late Claim Application

Thereafter, in June 2021, movant filed the instant late claim application. The proposed claim alleges that the question posed to movant by the supervisor during the staff meeting was discriminatory and asked in violation of New York State Human Rights Law (HRL). The proposed claim alleged damages as: "including but not limited to personal injuries to his body and mind, mental anxiety, stress, emotional distress, loss of employment, damage to his reputation, loss of compensation, permanent damage to reputation and standing in the community, loss of comfort, support, and companionship, extreme mental and emotional harm and stress, impairment of earning power, and other injuries not yet fully ascertained" (Movant's Ex. 1, ¶ 4). The State opposes the application.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (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 a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).

The Court has considered all of the factors. With regard to the first factor, a claim alleging a violation of the NYS HRL must be commenced within 90 days after the accrual of the claim (Court of Claims Act § 10 [3]; see Bhagalia v State of New York, 228 AD2d 882, 883 [3d Dept 1996] [Court of Claims Act § 10 (3) was held to be applicable in determining whether an alleged violation of HRL was timely commenced]). In the case at bar, it is undisputed that a claim was not timely commenced. Movant's purported excuse for the delay is that he was "unaware of the Notice of Claim requirement" (Attorney's Supporting Affirmation ¶ 7). Movant's excuse is essentially ignorance of the law, which is not a reasonable excuse (see Borawski v State of New York, 128 AD3d 628, 629 [2d Dept 2015] ["ignorance of the law was not excusable"]; see also Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977] [An error in filing a claim against the wrong party was not a reasonable excuse for the delay]; Gatti v State of New York, 90 AD2d 840 [2d Dept 1982] [A mistaken belief that the town and not the State owned the road in issue was not a reasonable excuse for the delay]). Accordingly, the Court finds that this factor does not weigh in favor of movant. This, however, is but one factor to be considered and it is not a determinative factor (see Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 AD3d 761 [2d Dept 2011]).

With regard to whether the State had notice of the essential facts constituting the claim, [*4]movant argues that "the State had implied notice of the essential facts constituting the claim because Ms. Tyson was aware that she asked an inappropriate question, in violation of NYSHRL, and four witnesses heard it" (Attorney's Supporting Affirmation ¶ 8). Movant's argument of implied notice is not supported by any cited caselaw and the Court does not find movant's argument to be persuasive. Additionally, according to the interviews conducted by the New York State Governor's Office of Employee Relations Anti-Discrimination Unit, John Varghese and Abdullah Mahbub stated that they did not hear the question and Nazmoon and Israel Marcias stated that they did not recall hearing the question (Movant's Ex. 4, p 4). Thus, the Court finds that this factor does not weigh in favor of movant.

With regard to whether the State had an opportunity to investigate the circumstances underlying the claim, movant argues that "the State has already investigated because it submitted a position statement to the Westchester Commission on Human Rights" (id. at ¶ 9). It is noted, however, that NYSIF's statement dated January 15, 2021 to WCHRC expressly states that NYSIF did not investigate the allegations raised in the complaint; rather the New York State Governors Office of Employee Relations Anti-Discrimination Unit conducted an investigation (Movant's Ex. 4, p 3, ¶ 5). Additionally, the statement provides, "NYSIF does not have any complaints or allegations against NYSIF or Ms. Tyson alleging discrimination based upon sexual orientation within the past two years" (id. at ¶ 6). Movant has not shown that NYSIF was given any notice of the circumstances underlying the claim until WCHRC's letter, dated December 15, 2020, to NYSIF informing NYSIF of movant's complaint. Said letter is dated more than six months after the alleged incident on June 10, 2020. Accordingly, the Court finds that the State was not afforded an opportunity to conduct an investigation within a reasonable time period after the alleged incident occurred. It is also noted that the Skype meeting was not recorded or transcribed and a significant amount of time has passed since the meeting, which has allowed for the memories of any potential witnesses to have faded. Thus, the Court finds that this factor does not weigh in favor of movant.

With regard to whether movant's delay substantially prejudiced the State, movant argues that the State has not been substantially prejudiced because the State impliedly knew of the incident when it occurred and subsequently learned of the complaint filed with WCHRC by letter dated December 15, 2020 from WCHRC to NYSIF and that the State can still defend itself. In light of the Court's findings that the State did not have timely notice and an opportunity to conduct an investigation, the Court finds that this factor does not weigh in favor of movant.

While no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater burden of establishing an appearance of merit of the proposed claim (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

While not alleged with specificity in the proposed claim, the affirmation of movant's attorney asserts that the State violated HRL, Executive Law § 296, et al., which prohibits discrimination based on sexual orientation or gender identity or expression, when Tyson posed [*5]the question at the Skype meeting to movant (Attorney's Supporting Affirmation ¶¶ 3, 10). Movant's attorney argues that there was no valid reason for the question to be posed in a public meeting other than harassment. In support of movant's showing of an appearance of merit of the proposed claim, movant submits: his attorney's supporting affirmation; a copy of the Employment Discrimination Complaint Form that movant filed against NYSIF with WCHRC on December 15, 2020 (Movant's Ex. 2); a copy of WCHRC's letter to NYSIF dated December 15, 2020 (Movant's Ex. 3); a copy of NYSIF's response to the complaint dated January 15, 2021with supporting documentation (Movant's Ex. 4); and a copy of the WCHRC Order of Administrative Dismissal dated April 28, 2021 which dismissed the complaint on the basis that WCHRC lacks jurisdiction (Movant's Ex. 5). Movant did not include an affidavit or any supporting documentation detailing the injuries claimed in the proposed claim.

To establish an appearance of merit of a claim of employment discrimination under the HRL, movant must show that: 1) movant was a member of a protected class; 2) movant was qualified to hold the position of employment; 3) movant was terminated from employment or suffered another adverse employment action; 4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999 [2nd Dept 2021]; Franco v Hyatt Corp.,189 AD3d 569, 570 [1st Dept 2020]). The proposed claim does not allege movant's membership in a protected class under Executive Law § 296 (1) (a), such as sexual orientation or gender identity or expression. Nor does the proposed claim allege with sufficient specificity that movant suffered an adverse employment action, i.e., a "materially adverse change in the terms and conditions of employment," such as a decrease in wages or salary, a material loss of benefits, a less distinguished title, or significantly diminished material responsibilities (Forrest, 3 NY3d at 306). Rather, the proposed claim alleges in conclusory terms, without any specific facts or dates to support the allegation, that movant suffered a "loss of employment . . . loss of compensation . . . impairment of earning power" (Movant's Ex. 1, ¶ 4).

Movant also fails to allege or present any facts which would establish an appearance of merit of a hostile work environment in violation of the HRL (Executive Law § 297 [1] [h]). A hostile work environment exists when the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" (Forrest, 3 NY3d at 310). The alleged isolated question in this matter, without any specific allegation as to how the remark interfered with movant's job performance, does not establish an appearance of merit of a hostile work environment (see id. at 310 [The use of three epithets over a nine-year employment history, while deplorable, does not constitute a hostile work environment; Reichman v City of New York, 179 AD3d 1115, 1118 [2d Dept 2020] [Dismissal of a hostile work environment claim was proper where the defendants established that the complained of conduct and remarks were not so severe or pervasive as to permeate the workplace and alter the plaintiff's conditions of employment]; La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d 918 [2d Dept 2015] [Dismissal of hostile work environment claim was proper where the remarks and conduct attributed to the defendant were not so severe or pervasive as to permeate the workplace and alter the conditions of plaintiff's employment]). Moreover, the utterance of an improper or [*6]discriminatory question by a supervisor, without the knowledge or acquiescence of the employer, does not constitute an unlawful discriminatory practice which is actionable under the HRL because the employer cannot be held liable for an employee's discriminatory act unless the employer became a party to the employee's conduct by either encouraging, condoning or approving the conduct (Forrest, 3 NY3d at 310-311). The proposed claim does not allege that NYSIF, the State agency employer, either knew of or acquiesced in Tyson's alleged conduct. Movant did not submit any proof that Tyson's alleged question was reported to NYSIF and NYSIF's statement in response to movant's complaint filed with WCHRC stated that "NYSIF does not have any complaints or allegations against NYSIF or Ms. Tyson alleging discrimination based upon sexual orientation within the past two years" (id. at ¶ 6). Nor was it alleged or established that Tyson was of such a high level managerial employee of NYSIF that Tyson would be viewed as a proxy of NYSIF (see Franco, 189 AD3d at 570). There are no factual allegations to support an appearance of merit that NYSIF was a party to any alleged discriminatory conduct of Tyson, its employee (see Reilly v First Niagara Bank, N.A.,173 AD3d 1082, 1083 [2d Dept 2019] [Discrimination complaint properly dismissed for failure to allege an adverse employment action occurred or that the workplace was permeated with discrimination and that the employer was a party to any discriminatory conduct]). Thus, the Court finds that this factor does not weigh in favor of movant.

It is also noted that while the proposed claim alleges personal injuries to movant's body and mind, mental anxiety, stress, emotional distress, and extreme mental and emotional harm and stress, movant did not particularize the bodily injury nor provide any specifics or supporting medical or mental health care records to support his allegations of the injuries resulting from the alleged conduct (Movant's Ex. 1, ¶ 4). Thus, the Court finds that movant has not established an appearance of merit of the injuries set forth in the proposed claim (see Klingler v State of New York, 213 AD2d 378 [2d Dept 1995] [movant's unsupported opinion does not suffice to establish merit of the proposed claim]).

In sum, the proposed claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) and, as noted above, even upon a most liberal reading of the proposed claim, movant has failed to establish an appearance of merit of his proposed claim.

With regard to another available remedy, movant argues that he does not have another available remedy. To the contrary, the State notes that movant has another available such as a suit in Supreme Court pursuant to Executive Law § 297 (9) (see Murphy v American Home Prods. Corp., 58 NY2d 293, 307 [1983]). Thus, the Court finds that this factor does not weigh in favor of movant.

The Court finds that, upon weighing all of the factors, the factors weigh against granting movant's application. Most significantly, there is a lack of an appearance of merit of the proposed claim and it would be futile to grant movant's application because the claim would be subject to dismissal.

Accordingly, movant's late claim application is DENIED.

Footnotes

Footnote 1:While movant characterizes his application as seeking an order granting leave to serve the proposed notice of claim nunc pro tunc and converting it into a claim, that is not an available remedy pursuant to Court of Claims § 10 (6).