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NYS Court of Claims decision 9-13-2013.pdf

NYS Court of Claims decision 9-13-2013.pdf

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Published by Jeffrey Malkan
Judge Moriarty of the Court of Claims dismissed my breach of contract claim, holding that it should have been captioned "Notice of Intent to File a Claim" rather than "Notice of Claim." Did the State receive notice of the claim or did it not? The appeal will go to the Third Department later this year.
Judge Moriarty of the Court of Claims dismissed my breach of contract claim, holding that it should have been captioned "Notice of Intent to File a Claim" rather than "Notice of Claim." Did the State receive notice of the claim or did it not? The appeal will go to the Third Department later this year.

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Published by: Jeffrey Malkan on Nov 08, 2013
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04/26/2014

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STATE
OF
N W
YORKCOURT
OF
CLAIMS JEFFREYMALKAN,
 
Claimant,
-v-
STATE
OF
N W
YORK(STATEUNIVERSITYOFNEWYORKATBUFFALO),Defendant.
DreiS/ON
NO.
nOR fY~
FILE
NO.
_
DATE
REC O
DECISION
AND
ORDER
ClaimNos.MotionNos.116355117676M-82149M-82351
FILED
SEP
Oe
2 13
STATE
COURT
OF
ClAIMS
BEFORE:APPEARANCES:
ALBANY
NY
HON.JEREMIAHJ.MORIARTY
III
ActingJudge
of
th
Court
of
Claims
ForClaimant:By: MarilynRaskin-Ortiz,Esq.James
R
Sandner,Esq.Richard
E.
Casagrande,Esq.ForDefendant:Hon.Eric
T.
SchneidermanNewYorkStateAttorneyGeneral
By:
Wendy
E
MorcioAssistantAttorneyGeneral
The following were read and considered with respect to Defendant s Motion No. M-82149 for summary judgment with respect
to
Claim No. 116355 the first claim):
1
Defendant s Notice
o
Motion and Affidavit
o
Assistant Attorney General Wendy Morcio sworn to September 7, 2012, with annexed Exhibits A-B;
2.
Opposing Affidavit
o
Marilyn Raskin-Ortiz, Esq. sworn to November
12,
2012;
3.
Claimant s Opposing Memorandum
o
Law dated November
12,
2012;
 
Claim
Nos.
116355 117676
Motion
Nos.
M-82149 M-82351
Page
2
4. RepJy Affidavit
of
Assistant Attorney General Wendy
E.
Morcio sworn
to
November 15,2012. Filed papers: Claim No. 116355 filed January 28,2009; Answer filed March 9,2009. The following were read and considered with respect to Defendant s Motion No. M-82351 for summary judgment with respect
to
Claim No. 117676 (the second claim):
1.
Defendant s Notice
of
Motion dated October 25, 2012 and Affidavit
of
Assistant Attorney General Wendy
E
Morcio sworn to October 26, 2012, with annexed Exhibits A-E; Opposing Affidavit
of
Marilyn Raskin-Ortiz, Esq. sworn to December 7,2012, with annexed Exhibit A; 3. Opposing Affidavit
of
Tara Singer-Blumberg sworn to December 7, 2012;
4.
Claimant s Opposing Memorandum
of
Law dated December
7 2012;
5.
Reply Affidavit
of
Assistant Attorney General Wendy Morcio sworn to December
11 2012
with annexed Exhibits
0-1.
1
Filed papers: Claim No. 117676 filed November 13,2009; Answer filed December 9,2009.
Procedural
History On January 28, 2009, Claimant, Jeffrey Malkan, filed his first claim, Claim
No.
116355, in which he alleged that on October 19, 2006, he entered into a written contract
of
employment with the State University
of
New York at Buffalo Law School (StTNY Buffalo Law School). Claimant further alleged that Defendant breached the contract
of
employment when it terminated Claimant s employment
as
a member
of
1 t1 e
SUNY Buffalo Law School faculty, and that this claim arose upon receipt, on or about August 30, 2008,
of
a letter dated August 28, 2008 advising Claimant that his
1
On December
13
2012, the same day the Court
of
Claims received and filed Defendant s reply affidavit;
the
Court received a letter from Assistant Attorney General Morcio including pages 22 and 23
of
the decision
of
the Administrative Law Judge with respect to the improper practice charge filed with the Public Employment Relations Board (PERB). These two pages were accidentally omitted from the PERB decision attached to Assistant Attorney General Morcio s reply affidavit
as
Exhibit
G.
Pages 22 and 23 have been incorporated into Defendant s Exhibit
G.
 
Claim Nos
116355 117676
Motion
Nos. M-82149 M-82351
Page
3
employment would end. On March 9, 2009, Defendant filed
its
answer to Claim No. 116355 in which it alleged, among others, that this Court lacked jurisdiction as Claimant failed to comply with Court
of
Claims Act
§
11
(b) in that the total sum claimed was not set forth in the claim (Answer to Claim No. 116355, first defense, Motion No. M-82149, Defendant s Exhibit B).
On
November 13, 2009, Claimant filed a second claim, Claim No. 117676, in which he alleged that Defendant breached the same written contract by terminating his employment
as
a member
of
the faculty
of
SUNY
Buffalo
Law
School. Attache-d to Claimant s secona claim
as
attachment A was a copy
of
a letter dated October 19, 2006 which Claimant alleges is the basis
of
his breach
of
contract claim. Unlike the first claim, Claimant s second claim contained a total sum for each item
of
damage. Also attached
to
the second claim
as
attachment B was a list
of
damages or injuries with a monetary amount listed for each item. On December 9, 2009, Defendant filed its answer to the second claim, Claim No. 117676
in
which it alleged, among others, that this Court did not have jurisdiction as the second claim was untimely filed and served in derogation
of
section
1
(4)
of
the Court
of
Claims Act (Answer
to
Claim No. 117676, seventh affirmative defense, Motion No. M-82351, Defendant s Exhibit B) .
y
notice
of
motion dated September 7, 2012, Defendant brought Motion No. M-82149 for summary judgment to dismiss Claimant s first claim, Claim No. 116355, alleging that Claimant failed to compiy with section
11
(b)
of
the Court
of
Claims Act by failing to allege the total amount claimed.
It
was ultimately agreed by the parties that Motion No. M -82149 would
be
submitted to the Court for decision without oral argument.
y
notice
of
motion dated October 25,2012, Defendant brought Motion No. M -82351 for summary judgment to dismiss Claimant s second claim, Claim No. 117676, alleging that the second claim
was
jurisdictionally defective. Oral argument was heard
y

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