Opinion
Motion No. M-96877
12-08-2021
Adan AGUIRRE, Movant, v. The STATE of New York, Defendant.
For Movant: Lewis & Lin, LLC, By: David D. Lin, Esq. For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL, By: Robert E. Morelli, Assistant Attorney General
For Movant: Lewis & Lin, LLC, By: David D. Lin, Esq.
For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL, By: Robert E. Morelli, Assistant Attorney General
Maureen T. Liccione, J.
Movant moves for permission to file and serve a late claim alleging a cause of action for defamation.
Movant is a professor and researcher in Stony Brook University's (SBU) Department of Pharmacology since 2009. He was granted tenure on June 29, 2017. Throughout his tenure at SBU, movant has conducted research or contributed to research in the field of neuroscience. He has produced scholarship and published articles in leading scientific journals.
In 2017, SBU initiated an investigation into movant's laboratory research. The investigation began when an anonymous complaint was made by a graduate student who worked in movant's laboratory, who is referred to in the various submissions by the initials MK. MK's complaint leveled allegations of research misconduct against movant. Movant alleges that MK made these allegations in an attempt to have movant removed as the Chair of the Thesis Committee to prevent movant from discovering that MK had fabricated his thesis work. Movant further alleges that MK lied about movant committing research misconduct and destroyed evidence that would have vindicated movant.
By letter dated June 14, 2019, Dr. Stanley, SBU President, informed movant of the results of the investigation into movant's laboratory research. The investigation determined that portions of movant's scholarship and publications were fabricated or falsified. The letter also informed movant that his grant of tenure was void and that his term in the Department of Pharmacology would expire on June 30, 2020 and would not be renewed. Movant filed a formal grievance regarding the rescission of his grant of tenure and the non-renewal of his term contract. The grievance is still pending.
In December 2019, movant filed a formal complaint concerning instances of research misconduct against MK. In October 2020, SBU informed movant that it decided not to investigate movant's complaint because it had already investigated the allegations contained therein during its 2017 investigation.
By letter dated June 29, 2020, SBU's Investigation Committee informed various journals that had previously published movant's research that SBU conducted an internal investigation that determined that the published articles were compromised and that a preponderance of the evidence supported retraction of the publications. Specifically, the letter stated: "Stony Brook University conducted an internal investigation which found that these articles [authored by or principally investigated by claimant, ADAN AGUIRRE,] were compromised and a preponderance of evidence supports retraction of the publications in order to correct the scientific record and ensure its integrity" (Affidavit of Adan Aguirre, Exhibit C). Movant alleges a cause of action for defamation based on the statement contained in the June 29, 2020 letter.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York , 299 AD2d 675 [3d Dept 2002] ). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors ( Court of Claims Act § 10 [6] ). These factors are: (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 state was substantially prejudiced; (5) whether the movant has any other available remedy; and (6) whether the claim appears to be meritorious ( Court of Claims Act § 10 [6] ). The presence or absence of any one of said factors is not dispositive ( Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen's and Firemen's Retirement Sys. , 55 NY2d 979 [1982] ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York , 199 AD2d 254 [2d Dept 1993] ; Prusack v State of New York , 117 AD2d 729 [2d Dept 1986] ).
Before addressing the six statutory factors, the Court must determine whether movant's alleged causes of action are timely under CPLR Article 2 ( Court of Claims Act § 10 [6] ). The proposed cause of action for defamation is an intentional tort governed by the one year statute of limitations set forth in CPLR 215. Assuming the movant stated a claim for defamation, the accrual would be June 29, 2020 — the date of the letter sent by SBU to various journals. The instant motion was filed on June 11, 2021 and therefore would be timely.
As discussed, infra , the claim should have been brought as a CPLR Article 78 proceeding.
On March 20, 2020, in response to the coronavirus public health emergency, then Governor Andrew M. Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8 ] [emphasis added]). That directive was extended through successive Executive Orders, with the final extension through and including "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67 ]). Accordingly, movant's time to commence this action was tolled on the date the alleged claim accrued on June 29, 2020, at which time claimant had 90 days to timely file a claim or one year to file a late claim application within the statute of limitations set forth in CPLR 215 (see Brash v Richards , 195 AD3d 582 [2d Dept 2021] ). The 90 day limitations period set forth in Court of Claims Act § 10 (3-b) and the statute of limitations for the defamation claim began running on November 4, 2020. The 90 day limitations period set forth in Court of Claims Act § 10 (3-b) expired on February 2, 2021. Claimant's time to file and serve the instant motion expired on November 4, 2021.
Turning then to the first factor in the Court's late claim analysis, movant sets forth several reasons for the delay in filing a claim. First, movant states that he delayed filing a claim for several months after the June 2020 letters were mailed because his formal complaint against MK was still pending, leaving open the possibility that the letters would be retracted. Movant also argues that he genuinely feared retribution by SBU if he filed a claim because his tenure grievance was and is still pending. In Walach v State of New York , 91 Misc 2d 167 [Ct Cl 1977], the Court recognized that where a movant has "some anxiety ... to get along favorably" with defendant, the movant's attempt to resolve a dispute without resorting to litigation is reasonable ( id. at 176 ). However, in Walach , the Court noted that the movant was also actively engaged in settlement discussions with defendant regarding monetary compensation for the movant's loss. The movant herein makes no similar claim of active settlement negotiations. Moreover, movant was aware in October 2020 that SBU declined to conduct an investigation into allegations of misconduct by MK, effectively foreclosing the possibility that SBU would change its position in regard to the conclusions of the 2017 investigation that resulted in the conclusion stated in the allegedly defamatory letters. Yet, movant did not file the instant motion until June 2021. Although movant also cites difficulties brought on by the COVID-19 pandemic, he does not specifically explain how those difficulties prevented him from timely filing a claim. Therefore, the Court finds that this factor does not weigh in movant's favor.
The next three factors—defendant's notice of the issues, opportunity to investigate, and prejudice—are interrelated and therefore frequently considered together. Movant argues that these three factors weigh in movant's favor because SBU investigated the circumstances underlying the claim and compiled data and other information during its 2017 investigation into the allegations made by MK. Moreover, an SBU employee made the statement at issue. Defendant argues that it would be prejudiced if the Court were to allow the filing of a late claim because the proposed claim should be brought in Supreme Court pursuant to CPLR Article 78, not a claim for defamation in the Court of Claims. The Court finds that these factors weigh in movant's favor. Defendant does not argue that it did not have notice of the issues in the proposed claim or an opportunity to investigate. As to prejudice, the Court finds that defendant would not be prejudiced given the short amount of time between the expiration of the 90 day limitations period set forth in Court of Claims Act § 10 (3-b) and the filing of the instant motion.
The 90 day limitations period expired on February 2, 2021 and the instant motion was filed on June 11, 2021 (see footnote 2, supra ).
As to the fifth factor, movant argues that he has no other available remedy. However, as argued by defendant, movant could have challenged the results of SBU's investigation by bringing an Article 78 proceeding in Supreme Court. Therefore, this factor does not weigh in movant's favor (see Sutton v State of New York , UID No. 2016-045-015 [Ct Cl, Lopez-Summa, J., June 24, 2016]).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
Turning then to the final factor, in order to establish a meritorious cause of action, claimant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" ( Rizzo v State of New York , 2 Misc 3d 829, 834 [Ct Cl 2003] ; see Court of Claims Act § 10 [6] ; Matter of Santana v New York State Thruway Auth. , 92 Misc 2d 1, 11 [Ct Cl 1977] ). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [claimant] to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [claimant] to file a late claim" (Williams v State of New York , UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth. , 92 Misc 2d at 11-12 ).
Defendant argues that the Court lacks jurisdiction over the proposed claim because the Court of Claims does not have the authority to review the administrative determination of a State agency. Such claims must be brought pursuant to Article 78 of the CPLR in Supreme Court.
The Court of Claims is a court of limited jurisdiction and does not have the jurisdiction to grant strictly equitable relief (see Madura v State of New York , 12 AD3d 759, 760 [3d Dept. 2004], lv denied 4 NY3d 704 [2005] ). The threshold question in determining whether the Court of Claims has subject matter jurisdiction over a claim is " ‘[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim’ " (id. , quoting Matter of Gross v Perales , 72 NY2d 231 [1988] ; see Matter of Salahuddin v Connell , 53 AD3d 898 [3d Dept 2008] ). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination, which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York , 42 AD3d 641 [3d Dept 2007] ; City of New York v State of New York , 46 AD3d 1168 [3d Dept 2007], lv denied 10 NY3d 705 [2008] ). An administrative agency's determination may be reviewed only in the context of a CPLR Article 78 proceeding commenced in Supreme Court; such action cannot be brought in the Court of Claims ( CPLR 7801 ; see Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs. , 60 AD3d 1142, 1144 [3d Dept 2009], citing Matter of Scherbyn v Wayne—Finger Lakes Bd. of Coop. Educ. Servs. , 77 NY2d 753, 757 [1991] ; City of New York v State of New York , 46 AD3d 1168, 1169 [3d Dept 2007] ).
"Judicial review of an academic institution's disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines and whether the determinations are based on a rational interpretation of the relevant evidence" ( Kickertz v New York Univ. , 110 AD3d 268, 272 [1st Dept 2013] [citation omitted]). Therefore, a challenge to an academic institution's determination after an administrative proceeding may only be brought pursuant to CPLR Article 78 (id. ). To the extent that a claimant's causes of action are not a challenge to the academic institution's determination and would not be duplicative of claims brought in an Article 78 petition, the claimant may seek monetary damages in the Court of Claims (see id. ).
Defamation "is defined as the making of a false statement which tends to ‘expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society’ " ( Foster v Churchill , 87 NY2d 744, 751 [1996], quoting Rinaldi v Holt, Rinehart & Winston , 42 NY2d 369, 379 [1977], citing Sydney v MacFadden Newspaper Publ. Corp. , 242 NY 208, 211-212 [1926] ). It "is the injury to one's reputation, either by written expression (libel) or oral expression (slander)" ( Penn Warranty Corp. v DiGiovanni , 10 Misc 3d 998, 1002 [Sup Ct, NY County 2005], citing Morrison v National Broadcasting Co. , 19 NY2d 453 [1967] ). The elements of defamation are: (1) a false statement; (2) the publication of said statement without privilege or authorization to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the statement causes special harm or constitutes defamation per se ( Dillon v City of New York , 261 AD2d 34, 38 [1st Dept 1999] ; Restatement [Second] of Torts § 558 ).
Although movant couches his claim in terms of defamation, it is clear that to the Court that movant ultimately seeks to have the Court review the research misconduct investigation undertaken by SBU. The statement with which movant takes issue was made by Dr. Rebecca Dahl, Assistant Vice President for Research Compliance at SBU, and sent to scientific journals including Elsevier Inc., d/b/a Cell Press in Cambridge, Massachusetts and the Yale University School of Medicine, Department of Psychiatry in New Haven, Connecticut. The statement reads as follows:
"I am writing as the Research Integrity Officer at Stony Brook University[....]
Stony Brook University conducted an internal investigation which found that these articles [authored by or principally investigated by claimant, ADAN AGUIRRE,] were compromised and a preponderance of evidence supports retraction of the publications in order to correct the scientific record and ensure its integrity.
We understand that a significant amount of time was invested in the review and publication of these articles[,] and we would avoid the request if at all possible. However, due to our findings regarding the data included in the articles we feel it is in the best interest of your journal to retract the articles.
Please confirm once the withdrawal process is complete ...."
(Proposed Claim [Adan Aff., Exhibit A], ¶ 3; Adan Aff. Exhibit C).
In order for the Court to determine whether the statement was defamatory, the Court would be required to impermissibly review the investigation conducted by SBU. Dr. Dahl described the three phases involved in SBU's review of allegations of research misconduct: assessment, inquiry and investigation (see Affidavit of Dr. Rebecca Dahl, ¶¶ 7-10). Research misconduct is investigated pursuant to SBU's Research Misconduct Policy P210 (id. , ¶ 3, Exhibit B). Dr. Dahl described the investigation phase as a "labor-intensive" process, the goal of which is to develop a factual record regarding the allegations (id. , ¶ 9).
Challenges to administrative determinations of an academic institution that involve "highly specialized professional judgment" are required to be brought by a CPLR Article 78 proceeding (Desu v State of New York , UID No. 2020-044-002 [Ct Cl, Schaewe, J., May 28, 2020], citing Maas v Cornell Univ. , 94 NY2d 87 [1999] ). The cases cited by movant are distinguishable as they do not involve statements that transmit the administrative determination of an academic institution's investigation to a third party. In Demas v Levitsky , 291 AD2d 653, 657 [3d Dept 2002], a case brought by a researcher at Cornell University, the defamation claim included statements "that there was no evidence supporting plaintiff's allegations, that plaintiff's research protocol and methodology were not original and that her doctoral degree was suspect as she supposedly failed to properly attribute her work." In Kickertz v New York Univ. , 110 AD3d 268, 276-277 [1st Dept 2013], a case brought by a dental student at New York University (NYU) who was expelled after a disciplinary committee found that she violated NYU's Code of Ethics, the defamation claim included statements that the plaintiff failed to show up at a dental clinic, failed to meet with the professor to check her graduation requirements, and that the plaintiff informed the professor that she was aware that she was deficient in her graduation requirements. Neither of these cases involved an investigation undertaken pursuant to established university policies and procedures and neither would require the Court to perform a review of an administrative determination. In contrast, the Court would necessarily be required to review SBU's investigation and subsequent determination if it allowed the filing of movant's late claim. The Court lacks the jurisdiction to perform such a review (see Demas v Levitsky , 291 AD2d at 660 ["Although couched in terms of ‘contract’ and ‘tort’ to avoid the applicable statutes of limitation, the claims are directed at Cornell's academic and administrative decision to reject plaintiff's administrative charges against [a professor], which may be reviewed only in a CPLR article 78 proceeding."]).
Although movant's affidavit and memoranda of law in support of the motion address the merits of only a defamation cause of action, the proposed claim states that the nature of the claim is for "defamation and tortious interference with prospective economic advantage" (Proposed Claim ¶ 2). The Court lacks jurisdiction over a claim for tortious interference with prospective economic advantage as well for the same reasons set forth, supra.
As it would be futile to allow the filing of a claim that would be subject to dismissal, the Court finds that the final factor does not weigh in movant's favor (see Savino v State of New York , 199 AD2d at 254-255).
The Court has considered the parties’ remaining contentions and finds them either without merit or unnecessary to this determination.
In consideration of the six factors enumerated in Court of Claims Act § 10 (6), movant's motion for late claim relief (M-96877) is DENIED .
Papers Considered:
1. Notice of Motion for Permission to File Late Claim, dated June 11, 2021; Affidavit of Dr. Aguirre in Support of Motion for Permission to File a Late Claim, sworn to by Dr. Adan Aguirre on June 10, 2021, with Exhibits A through D attached; and Memorandum of Law in Support of Motion for Permission to File Late Claim, dated June 11, 2021.
2. Affirmation in Opposition to Claimant's Motion for Leave to File a Late Claim, affirmed by Robert E. Morelli, AAG on July 29, 2021, with Attachments.
3. Affidavit of Rebecca Dahl, sworn to on July 27, 2021, with Attachments.
4. Reply Memorandum of Law in Support of Permission to File Late Claim, dated September 1, 2021.