Opinion
# 2018-032-040 Claim No. 130956 Motion No. M-91795
07-03-2018
ROSA A. NUNEZ v. THE STATE OF NEW YORK
Rosa A. Nunez, Pro Se Hon. Barbara D. Underwood, NYS Attorney General By: Giyang An, Assistant Attorney General, Of Counsel
Synopsis
Movant's motion to file a late claim is denied. The causes of action asserted in the proposed claim are barred by the doctrine of res judicata.
Case information
| UID: | 2018-032-040 |
| Claimant(s): | ROSA A. NUNEZ |
| Claimant short name: | NUNEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to sua sponte reflect the properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130956 |
| Motion number(s): | M-91795 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Rosa A. Nunez, Pro Se |
| Defendant's attorney: | Hon. Barbara D. Underwood, NYS Attorney General By: Giyang An, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | July 3, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant seeks permission to file and serve a late claim alleging claims of sexual harassment and retaliation that occurred while movant was employed by the New York State Department of Corrections and Community Supervision (DOCCS). Claimant alleges that she was sexually harrassed and retaliated against by her supervisor from 2010 to 2015 (Proposed Claim ¶ 2). She filed two administrative complaints in July 2013 and December 2014. Despite her request that her supervisor be transferred to a different bureau, movant continued to work under her supervisor following the submission of the complaints. Movant alleges that DOCCS did not take any measures to protect her, and that DOCCS is "vicariously liable" (Proposed Claim ¶ 2). Defendant argues that the causes of action asserted in the proposed claim are barred by the doctrine of res judicata; that any claims arising under the New York City Human Rights Law (NYCHRL) cannot be asserted in this Court against the State; that the claims are untimely under CPLR Article 2; that the "Tolling Provisions Doctrine" does not apply to extend the applicable statutes of limitation; that the claim is defective; and that claim failed to argue the six factors applicable to late claim applications under Court of Claims Act § 10 (6). For the following reasons, the Court denies movant's application for late claim relief.
LAW AND ANALYSIS
Res Judicata
The doctrine of res judicata bars claims or issues that were actually litigated as well as those that could have been litigated in a prior proceeding (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 348 [1999]; Pauk v Board of Trustees of City Univ. of N.Y., 111 AD2d 17, 20-21 [1st Dept. 1985], affd 68 NY2d 702 [1986]). In O'Brien v City of Syracuse (54 NY2d 353, 357 [1981]), the Court of Appeals stated that "once a claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy."
Here, defendant argues that the causes of action asserted in the proposed claim are barred because all of the causes of action were dismissed on the merits in movant's federal court action. Specifically, on July 31, 2015, the Honorable Jesse M. Furman of the United States District Court for the Southern District of New York granted the defendants' motion to dismiss for failure to state a cause of action as to the following claims: (1) sexual harassment claims under Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State Human Rights Law (NYSHRL); (2) hostile work environment claims under Title VII, the NYSHRL and the NYCHRL; and all NYSHRL and NYCHRL claims against DOCCS (see Nunez v N.Y. State Dept. of Corrs. and Community Supervision, 2015 WL 4605684, at *18 [SD NY, July 31, 2015, No. 14-CV-6647, Furman, J.]). On August 11, 2017, Judge Furman granted summary judgment to defendants on movant's remaining causes of action: (1) retaliation claims against DOCCS under Title VII and against defendant Joseph A. Lima, individually, under the NYSHRL and the NYCHRL; and (2) a sexual harassment claim against Lima, individually under the NYCHRL (see Nunez v N.Y. State Dept. of Corrs. and Community Supervision, 2017 WL 3475494, at *5 [SD NY, No. 14-CV-6647, Furman, J.]). The dismissal of the remaining claims was without prejudice only as to movant's retaliation and harassment claims against Joseph A. Lima individually under the NYCHRL.
The Court finds that claimant's causes of action for sexual harassment, retaliation, and a hostile work environment were "necessarily decided" in Federal court by Judge Furman (see Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 24 [2d Dept. 2015] [internal quotation marks omitted]), and movant is barred from asserting such causes of action in this Court. The claims asserted in movant's proposed claim are the same claims asserted in the Federal Court action (Proposed Claim ¶ 2; Nunez v N.Y. State Dept. of Corrs. and Community Supervision, 2015 WL 4605684, at *18 [SD NY, July 31, 2015, No. 14-CV-6647, Furman, J.]; Nunez v N.Y. State Dept. of Corrs. and Community Supervision, 2017 WL 3475494, at *5 [SD NY, No. 14-CV-6647, Furman, J.]). It is clear that Judge Furman, in assessing movant's causes of action under the NYSHRL, exercised pendent jurisdiction over the causes of action for harassment, retaliation, and a hostile work environment (Troy v Goord, 300 AD2d 1086, 1086 [4th Dept. 2002]; see Bielby v Middaugh, 120 AD3d 896, 898 [4th Dept. 2014]). He concluded that movant failed to state a cause of action, or raise a triable issue of fact as to movant's causes of action for harassment, retaliation and a hostile work environment under all applicable laws. Where, as here "a [proposed] new claim constitutes the same cause of action as the formerly litigated claim [as] they both arise out of the same transaction or occurrence or series of transactions or occurrences[,]" movant is barred from relitigating the causes of action decided in the formerly litigated action, even where the new claim is premised on a new legal theory (see Troy v Goord, 300 AD2d at 1086). Accordingly, the Court denies movant's motion for permission to file a late claim as to the causes of action for harassment, retaliation, and a hostile work environment, as such claims are barred by the doctrine of res judicata.
Remaining Claims
To the extent that movant argues that the State of New York violated her rights under the NYCHRL "the City of New York does not have the power to waive the State's sovereign immunity by passing an anti-discrimination code provision applicable to instrumentalities of the State" (Jattan v Queens Coll. of City Univ. of N.Y., 64 AD3d 540, 542 [2d Dept. 2009]). Thus, movant cannot sue the State of New York under the NYCHRL (see Jackson v N.Y. State Off. of Mental Health, 2012 WL 3457961, *13 [SD NY, Aug. 13, 2012, No. 11-CV-7832 GBD/KNF]). Accordingly, even though Judge Furman dismissed movant's NYCHRL retaliation and harassment claims without prejudice to refiling in state court (see Nunez v N.Y. State Dept. of Corrs. and Community Supervision, 2017 WL 3475494, at *5), such claims cannot be asserted against the State, and must be asserted in supreme court against Joseph A. Lima in his individual capacity.
Accordingly, movant's motion to file a late claim (M-91795) is denied, and the Court need not address the alternative grounds for denial of movant's motion raised by defendant.
July 3, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated February 4, 2018; and Proposed Claim, verified on February 4, 2018, with Attachments. 2. Affirmation in Opposition, affirmed by Giyang An, AAG on April 9, 2018, with Exhibits A through G annexed thereto.