Ray v. Franchini

2014 NY Slip Op 33929(U)

CARRIANN RAY Plaintiff v. ANNETTE FRANCHINI, individual and as theDirector of Human Resources to the New YorkState Education Department Defendant

Index No. CA2013-001730

STATE OF NEW YORK SUPREME COURT COUNTY OF ONEIDA

November 12, 2014

At a term of Supreme Court of the State of New York held in and for the County of Oneida at the Oneida County Courthouse, 200 Elizabeth Street, Utica, New York on the 12^th day of November 2014.

PRESENT: HONORABLE BERNADETTE T. CLARK Justice Presiding

RJI No. 32-14-0461

Decision, Order and Judgment on Motion

Before the Court is a motion to dismiss pursuant to CPLR § 3211 for failure to state a cause of action filed by the Defendant Annette Franchini, individually and as the Director of Human Resources to the New York State Education Department. Considered on the motion were the notice of motion of the Defendant dated May 9, 2014, the affidavit in support of the motion to dismiss dated May 9, 2014, and the attached exhibit A, the Defendant's counsel's memorandum of law dated May 9, 2014, the Plaintiff's attorney's affirmation in opposition to her motion to dismiss dated June 2, 2014, along with attached exhibits A-C, the Plaintiff's counsel's memorandum of law in opposition to the Defendant's motion to dismiss, dated June 2, 2014, and the Defendant's memorandum of law in reply to the opposition to Defendant's motion to dismiss.

The underlying complaint alleges that the Plaintiff had been employed by the New York State Education Department (SED) as Superintendent of Schools of the New York State School for the Deaf (NYSSD) from her appointment to that post in January 2006 until her termination on August 30, 2012. She alleges that her position was in an exempt class and that she served at the pleasure of the Commissioner of Education. The Plaintiff alleges that during her tenure at NYSSD, another employee, Victoria Stockton maliciously began a campaign to undermine and discredit Plaintiff with the sole objective of convincing SED to terminate Plaintiff's employment. Plaintiff further alleges that without any warning, on August 30, 2012, Defendant, acting as Director of Human Resources for SED, terminated Plaintiff's employment. Upon asking Defendant why, Defendant initially told her that she was not entitled to a reason, but eventually Defendant informed Plaintiff that she was being terminated for her 'inability to lead' and the 'poor morale of the teachers and staff.' The Plaintiff alleges that the Defendant terminated Plaintiff based on a petition which was signed by individuals, including Victoria Stockton, who were only seeking retribution for personal grievances. She further alleges that Defendant terminated Plaintiff without questioning or seeking a rebuttal from Plaintiff herself on any alleged issues and upon information and belief, Defendant terminated Plaintiff without reviewing her personnel file or records regarding Plaintiff's job performance, history or record, and without investigating the motivations of the signatories to the petition. Plaintiff also alleges that the Defendant terminated Plaintiff based on false charges of financial impropriety, which upon investigation were unfounded and meritless. Plaintiff alleges that her employment would not have been terminated if a proper investigation into the complaints and charges had been conducted, and that but for Defendant's hasty termination of Plaintiff based on petty complaints and meritless charges, Plaintiff would not have suffered termination of her position. Thus as a sole and direct result of the Defendant's conduct, Plaintiff has suffered personal harm, loss wage and benefits, humiliation and damage to her career and future employment.

As a result, the Plaintiff has asserted three causes of action in her complaint against the Defendant, to wit: Tortious Interference with Prospective Economic Advantage, Tortious Interference with Economic relations, and Prima Facie Tort.

The Defendant's motion raises several arguments for dismissal. Initially she argues that the exclusive remedy for a discharged public employee is an Article 78 proceeding. Further, she asserts that the Court of Claims has exclusive authority over claims against state officers for their official actions and that the Plaintiff has failed to plead that the Defendant acted outside the scope of her official duty and thus the State is the real party in interest. Further, the Defendant posits that the Plaintiff has failed to state any causes of action.

In the Plaintiff's opposition, she alleges that her termination was based on false allegations of Victoria Stockton, which the Defendant, "without any investigation or inquiry whatsoever, adopted and copied those allegations into her report, that was then used to terminate Plaintiff from her position as Superintendent for the NYSSD." The Plaintiff's counsel further argues that the allegations of "Theft of Services/Abuse of Authority" and " Possible Misappropriation of Funds" which are raised in the Defendant's report were found to be not true in an audit by the Office of Audit Services released several months after Plaintiff's termination. Plaintiff's counsel further alleges that the Defendant never conducted an investigation, nor met with or spoke to the Plaintiff to get her side of the story, and that the Plaintiff never even knew that these allegations were made against her.

The Plaintiff's counsel argues that the Plaintiff was not required to file an Article 78 proceeding because she is suing the employee of a public entity for her individual torts. Further, counsel asserts that the Defendant was not acting within the scope of her employment when engaging in the wrongful acts against the Plaintiff. Further counsel states that Plaintiff has stated proper claims against the Defendant.

Initially, the Court notes that the Fourth Department in Mantione v. Crazy Jakes, Inc., et al., 101 A.D.3d 1719, 1720 [4^th Dept. 2012] succinctly stated the evidentiary standards to be employed by the court in assessing an CPLR 3211 motion:

"In determining a CPLR 3211 motion, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint . . . and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' " (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Gibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141, 1142 [2005]). The court may also consider affidavits and other evidentiary material to "establish conclusively that plaintiff has no cause of action" (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; see Gibraltar Steel Corp., 19 AD3d at 1142). "Any facts in the complaint and submissions in opposition to the motion to dismiss are accepted as true, [however,] and the benefit of every possible favorable inference is afforded to the plaintiff" (Gibraltar Steel Corp., 19 AD3d at 1142)."

With regard to the Defendant's first point of contention regarding the utilization of the Article 78 procedure, the Court observes that the Court of Appeals in Austin v. Bd. of Higher Ed. Of the City of New York, 5 N.Y.2d 430 [1959]) in addressing an action at law by 6 discharged public employees for back salary noted that "...the right to a position determines the right to the salary incident thereto (Austin, 5 N.Y.2d at 439)." The Court further went on to state that:

"Manifestly, the validity of a dismissal of a public employee should be determined expeditiously and before the possible accumulation of substantial sums for back pay. Unless reinstatement by means of an article 78 proceeding is a prerequisite to a claim for payment of salary, the dismissed employee, without rendering any service, may defer action until expiration of the six-year Statute of Limitations is imminent (Id., 5 N.Y.2d at 442)."

Thus, the Court held that the public employees right to the position which he was discharged from, and his right to the salary from the date of discharge must be promptly determined in an Article 78 proceeding (Id., at 443). However, in the case at bar, the Plaintiff has asserted three tort causes of action, and she is claiming to have sustained "personal injury, humiliation, emotional distress, mental anguish and suffering, and monetary damages." Further, her "wherefore clause" demands compensatory and punitive damages. Thus, clearly more that back salary and benefits are being claimed. Hence, the present situation is distinguishable from Austin.

The Court also notes that the array of damages sought by the Plaintiff is not incidental to the primary relief of reinstatement, which would be required in an Article 78 proceeding (See La Duke v. Lyons, 250 A.D.2d 969, 971 [3^rd Dept. 1998]). The compensatory damages for the torts alleged in the complaint herein could be recoverable without regard to the administrative decision to fire the Plaintiff and thus are not available in an Article 78 proceeding as incidental damages (La Duke, 250 A.D.2d at 971). Thus, the salutary purpose of the rule annunciated in Austin is irrelevant to the situation at bar because the Plaintiff may be entitled to damages at law under her causes of action, irrespective of the wrongfulness of her discharge. Therefore, the Court disagrees with the defendant's position, and determines that in the case at bar that there is no requirement for the Plaintiff to have first commenced an Article 78 proceeding.

With regard to the Defendant's second contention that this Court lacks jurisdiction and that the matter should be heard in the Court of Claims, "'[t]he Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State—i.e., where the State is the real party in interest' (Borawski v. Abulafia, 117 A.D.3d 662, 663 [2^nd Dept. 2014], quoting Morell v. Balasubramanian, 70 N.Y.2d 297, 300; see Starker v. Trump Vil. ...