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STATE OF NEW YORK COURT OF CLAIMS

JEFFREY MALKAN,
Claimant, Claim No. 117676
-against-
Hon. Jeremiah J. Moriarity III
STATE OF NEW YORK (STATE UNIVERSITY
OF NEW YORK AT BUFFALO),
Defendant.
MEMORANDUM OF LAW ON BEHALF OF CLAIMANT
JEFFREY MALKAN, IN OPPOSITION TO DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT TO DISMISS THE CLAIM
RICHARD E. CASAGRANDE, ESQ.
Attorney for Claimant Jeffrey Malkan
800 Troy Schenectady Road
Latham, New York 12110-2455
Telephone: (518) 213-6000
MARILYN RASKIN-ORTIZ, ESQ.
Of Counsel
TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT .................................................. 1
ARGUMENT ................................................................. 2
POINT I
DEFENDANT IS MISTAKEN IN ITS ASSERTION THAT THE
ABOVE-CAPTIONED CLAIM MUST BE DISMISSED BECAUSE
MR. MALKAN HAS A SEPARATE, EXCLUSIVE REMEDY ................... 2
POINT
DEFENDANT IS MISTAKEN IN ITS ASSERTION THAT THE
II
CLAIM IS UNTIMELY ................................................... 2
POINT III
DEFENDANT IS MISTAKEN IN ITS ASSERTION THAT THE
"PROPOSED NOTICE OF CLAIM FAILS TO COMPLY WITH
COURT OF CLAIMS ACT 11." ............................................ 4
CONCLUSION ............................................................... 6
PRELIMINARY STATEMENT
This memorandum oflaw is submitted in opposition to Defendant's motion to dismiss the
above-referenced Claim. As set forth in the accompanying Affidavits and in this memorandum of
law, Defendant is mistaken in its assertion that Claimant's exclusive remedy is the grievance
procedure ofthe collective bargaining agreement. Defendant is also mistaken in its assertion that the
Claim must be dismissed as untimely, or because it allegedly fails to comply with Court of Claims
Act section 11.
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ARGUMENT
POINT I
DEFENDANT IS MISTAKEN IN ITS ASSERTION THAT THE
ABOVE-CAPTIONED CLAIM MUST BE DISMISSED BECAUSE
MR. MALKAN HAS A SEPARATE, EXCLUSIVE REMEDY.
Defendant contends that Mr. Malkan's Claim must be dismissed because he has a separate,
exclusive remedy that Defendant variously describes as a grievance filed with PERB or a PERB
proceeding filed pursuant to the collective bargaining agreement.
As explained in the accompanying affidavit ofTara Singer-Blumberg, Defendant appears to
be confused regarding the distinction between a PERB charge and a contract grievance. See Singer-
Blumberg affidavit at ~ ~ 8-10.
Further, as explained in Singer-Blumberg's affidavit, the situation that is the subject ofMr.
Malkan's Claim in this Court is not covered by the provisions ofthe collective bargaining agreement
between UUP and the State (the "CBA"), because the claim involves a breach of an individual
contract between Mr. Malkan and the State, and the CBA does not govern individual contracts
except insofar as the CBA sets forth certain procedural requirements. Because the Defendant did
not fail to abide by the particular procedural requirements set forth in the CBA, there was no basis
for filing a grievance pursuant to the CBA. See Singer-Blumberg affidavit at ~ ~ 12-15.
POINT II
DEFENDANT IS MISTAKEN IN ITS ASSERTION THAT THE
CLAIM IS UNTIMELY.
Defendant contends that the claim is untimely "as the alleged breach occurred on or about
August 28, 2008." See Morcio affidavit at ~ ~ 32-38.
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Pursuant to Court of Claims Act 1 0(4):
A claim for breach of contract, express or implied, and any other
claim not otherwise provided for by this section, over which
jurisdiction has been conferred upon the court ofclaims, shall be filed
and served upon the attorney general within six months after the
accrual of such claim, unless the claimant shall within such time
serve upon the attorney general a written notice of intention to file a
claim therefor, in which event the claim shall be filed and served
upon the attorney general within two years after such accrual.
(Emphasis added.)
F or the purpose of determining whether a claim filed in the Court of Claims is timely, the
issue is when the "claim accrued," not when the "cause ofaction" accrued. See, Acme Builders, Inc.
v. County ofNassau, 36 AD2d 317,320-321 (2d Dep't 1971). In Court ofClaims practice, the time
at which a "claim accrued" means the time at which"damages accrued." Id.
While Defendant notified Mr. Malkan on August 28, 2008 that his employment as a clinical
professor would end on August 31,2009, he lost no salary or other monetary benefits until that
employment ended. Because the above-captioned Claim was filed within six months after
September 1, 2009, it was timely filed, because that date is when the damages first accrued. 1
Defendant's reliance on Syrkin is misplaced. See Morcio affidavit at ~ ~ 34 - 36. In Syrkin,
the Court made it clear that its determination ofthe date the claim accrued was based on the fact that
the Claim was for discrimination. Mr. Malkan's Claim is for breach of contract. His Claim does
not allege discrimination.
1 In the alternative, the above-captioned Claim should be deemed timely on the ground
that it was preceded by a Notice ofIntent, and then filed within two years of the accrual of the
Claim. (See copy of the November 12,2012 memo oflaw and affidavit that Claimant submitted
in opposition to Defendant's motion to dismiss Claim No.11635, attached as Exhibit "A" to the
December 7, 2012 affidavit of Marilyn Raskin-Ortiz .)
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POINT III
DEFENDANT IS MISTAKEN IN ITS ASSERTION THAT THE
"PROPOSED NOTICE OF CLAIM FAILS TO COMPLY WITH
COURT OF CLAIMS ACT 11."
(a) Defendant, citing Pecoraro v. NYS Dep 't ofEnvironmental Conservation (Court of
Claims, Judge Ruderman) contends that Mr. Malkan's Claim fails to meet the requirement ofCourt
of Claims Act 11, because it is "conclusory in nature." See Morcio affidavit at ~ 4 2 . Defendant's
reliance on Percoraro is misplaced .. The issue in that case was whether a motion to file a late claim
would be granted, and Judge Ruderman stated: "Unlike a party who has timely filed a claim, a party
seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be
meritorious [citation omitted]." It was in that context that Judge Ruderman stated that the claimant
"has offered only the vaguest of averments to support her claim that DEC made express promises
to her and that a contract was made between claimant and DEC," and that the "copies of
correspondence" that claimant attached to his claim "does not establish a promissory contract
between DEC and claimant."
Defendant also relies on Fish Bait Company, LLP v. State ofNew York (Court of Claims,
Judge Lack). See Morcio affidavit at ~ 44. While Judge Lack stated in Fish Bait that "Claimant
must allege which portions ofthe contract were breached, and that the failure to do so is fatal to its
cause of action for breach," his statement seems to be have been based solely on his citation of 767
Third Ave., LLC v. Greble & Finger, LLP, 8 AD3d 75, which does not appear to have involved any
interpretation of the Court of Claims Act. Accordingly, we respectfully suggest that the standard
applicable to the present Claim is not governed by Fish Bait.
Section 11 of the Court of Claims Act provides, in relevant part, that a Claim shall state the
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"nature" of the claim. Mr. Malkan's Claim satisfies that requirement. As explained in Eastland v.
State ofNew York, #2012-015-346, Claim No. 120890, where the Court denied defendant's motion
to dismiss the claim as jurisdictionally defective under Court of Claims Act ("CCA") 11 (b), the
purpose of the pleading requirements "is to provide a sufficiently detailed description of the
particulars ofthe claim to enable [defendant] to investigate and promptly ascertain the existence and
extent of its liability" (citing Jones v State ofNew York, 56 AD3d 906, 907 [2008], quoting Sinski
v State ofNew York, 265 AD2d 319, 319 [1999]). As the Court in Eastland further stated:
While defendant's objection to the open-ended allegations in the
claim regarding ... the conduct complained of ... is well founded, its
objection is an evidentiary one which may be raised, if necessary, at
the time of trial. Id.
b) Defendant contends that the Claim must be dismissed because it lacks an accrual date.
See Morcio affidavit at Defendant is mistaken.
As discussed above, in Court of Claims practice the date a claim accrues is the date the
damages accrue. Mr. Malkan's Claim, at paragraph 3, states that "In breach of those contractual
rights, his employment was terminated August 31,2009." Paragraph 4 ofMr. Malkan's Claim, and
the expressly incorporated Attachment "B" to the Claim, specifY the damages that accrued
commencing on September 1,2009. (The Claim, which includes Attachments A and B, is annexed
to Defendant's motion to dismiss as Exhibit A.) Accordingly, the Claim satisfies the pleading
requirements of Court of Claims Act 11 (b).
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CONCLUSION
For the reasons stated above, Defendants' motion to dismiss the Claim should be denied.
Dated: December 7, 2012 RlCHARD E. CASAGRANDE, ESQ.
Latham, New York Attorney for Claimant Jeffrey Malkan
Office & P.O. Address
800 Troy-Schenectady Road
Latham, NY 12110-2455
Tel. No. (518) 213-6000
By:
~ r h - & r
l04647/CWAl141
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