Trowbridge v. City Univ. of N.Y.

2024 NY Slip Op 33434(U)

• Court: New York Supreme Court, New York County
• Decided: September 26, 2024
• Docket: Index No. 154124/2024
• Status: Unpublished

Opinion

Trowbridge v City Univ. of N.Y. 2024 NY Slip Op 33434(U) September 26, 2024 Supreme Court, New York County Docket Number: Index No. 154124/2024 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 154124/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------------X INDEX NO. 154124/2024 STEPHEN TROWBRIDGE, MOTION DATE 09/08/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

CITY UNIVERSITY OF NEW YORK, RUSSELL HOTZLER, DECISION + ORDER ON MIGUEL CAIROL MOTION Defendant.

--------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 11, 12, 13 were read on this motion to/for DISMISSAL

Upon the foregoing documents, Defendants City University of New York ("CUNY"),

Russell Hotzler ("Hotzler"), and Miguel Cairol ("Cairol") collectively ("Defendants") motion to

dismiss Plaintiff Stephen Trowbridge's ("Plaintiff') Complaint is granted.

I. Background

This is an employment discrimination action alleging disability-based discrimination and

retaliation (see generally NYSCEF Doc. 2). Plaintiff was employed by CUNY as a Director of

Public Safety at the New York City College of Technology ("NYCCT"), a subdivision of CUNY.

Plaintiff allegedly was fired after he reported that NYCCT was committing fraud. He also alleges

he was fired for seeking disability-based accommodation. Plaintiff alleges retaliation continued as

after he was discharged CUNY failed to pay him all unused leave and other benefits.

Defendants move to dismiss and argue the Court of Claims has exclusive jurisdiction over

claims asserted against CUNY and its employees. Defendants further argue that CUNY was

improperly served according to CPLR § 307. Plaintiff concedes that his breach of contract claim

154124/2024 TROWBRIDGE, STEPHEN vs. CITY UNIVERSITY OF NEW YORK ET AL Page 1 of 4 Motion No. 001

1 of 4 [* 1] INDEX NO. 154124/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2024

belongs in the Court of Claims and represents he is willing to re-file his breach of contract claim

but argues that this Court has jurisdiction over the whistleblower claims, the state human rights

law claim, and the FMLA claims. Plaintiff fails to address the service deficiencies pursuant to

CPLR § 307. In reply, Defendants reassert that they were not served properly and therefore this

Court lacks jurisdiction. Moreover, Defendants argue that because Plaintiff seeks money damages

against a state agency, exclusive jurisdiction lies with the Court of Claims.

II. Discussion

Where an action seeks to recover money from the state, it must be brought in the Court of

Claims and not the Supreme Court ( Bank of New York v Tully, 84 AD2d 704 [ I st Dept 1981 ]).

This rule encompasses claims for breach of contract against senior colleges of City University

(Gelin v Lehman College, 254 AD2d 119 [1st Dept 1998]; Illickal v Roman, 236 AD2d 247 [1st

Dept 1997]; see also Education Law § 6224[4 ]). Moreover, whistleblower retaliation claims in

violation of Civil Service Law § 75-b "are committed to the exclusive jurisdiction of the Court of

Claims" (Ajoku v New York State Office of Temporary and Disability Assistance, 198 AD3d 437

[1st Dept 2021] citing Schaffer v Evans, 86 AD2d 708 [1st Dept 1982]). However, the Court of

Appeals has ruled that claims under the New York State Human Rights Law may be brought in

the Court of Claims or other forums (Koerner v State, 62 NY2d 442 [19841).

Pursuant to CPLR 307, to sue a state officer who was acting solely in their official capacity,

or a state agency, service must be made by (1) delivering the summons to such officer or to the

chief executive officer of such agency or to a person designated by such chief executive officer to

receive service, or (2) by mailing the summons by certified mail, return receipt requested, to such

officer or to the chief executive officer of such agency, and by personal service upon the state by

delivering same to an assistant attorney-general.

154124/2024 TROWBRIDGE, STEPHEN vs. CITY UNIVERSITY OF NEW YORK ET AL Page 2 of 4 Motion No. 001

2 of 4 [* 2] INDEX NO. 154124/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2024

Here, the affidavits of service indicate only that the Amended Complaint was served on

the Attorney General (NYSCEF Docs. 10-11 ), but there is no affidavit of service indicating the

Amended Complaint was mailed to or served on the individual state officers Hotzler or Cairol or

the chief executive officer of CUNY, which is a state agency within the meaning of CPLR 307(2)

(see e.g. Vargas v State, 95 AD3d 588 [1st Dept 2012]; Lowney v New York State Div. of Human

Rights, 68 AD3d 551 [1st Dept 2009]; Moogan v New York State Dept of Health, 8 AD3d 68 [1st

Dept 2004]; Yoon Kim v New York State Health Dept, 262 AD2d 156 [1st Dept 1999]). Plaintiff

did not address these deficiencies in opposition to Defendants' motion.

Based on the issues surrounding service and subject matter jurisdiction, this Court is

constrained to dismiss the action (see, e.g. Golembiowski v Port Auth. ofNY & NJ, 205 AD3d 478

[1st Dept 2022]; see also Court of Claims Act§ 11 [a][ii]). However, as the dismissal is not on the

merits but based on technicalities, it is without prejudice, with leave to replead in the proper forum

and where service has been properly effectuated on the Defendants.

Accordingly, it is hereby,

ORDERED that Defendants City University of New York, Russell Hotzler, and Miguel

Cairol's motion to dismiss Plaintiffs Complaint is granted, and the Complaint is hereby dismissed,

without prejudice, with leave to replead in the proper forum in accordance with the requirements

of CPLR 307; and it is further

[The remainder of this page is intentionally left blank.]

154124/2024 TROWBRIDGE, STEPHEN vs. CITY UNIVERSITY OF NEW YORK ET AL Page 3 of 4 Motion No. 001

3 of 4 [* 3] INDEX NO. 154124/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2024

ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

9/26/2024 DATE

~ CASE DISPOSEC

~ CHECK ONE : NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

154124/2024 TROWBRIDGE, STEPHEN vs . CITY UNIVERSITY OF NEW YORK ET AL Page 4 of 4 Motion No. 001

[* 4] 4 of 4