STATE OF NEW YORK COURT OF CLAIMS

JEFFREY MALKAN,
AFFIDA VIT IN
OPPOSITION TO
Claimant, DEFENDANT'S MOTION
TO DISMISS
STATE OF NEW YORK (STATE UNIVERSITY
OF NEW YORK AT BUFFALO), Claim No. 117676
Defendant. Hon. Jeremiah 1. Moriarity III
STATE OF NEW YORK
ss.:
COUNTY OF ALBANY
MARILYN RASKIN-ORTIZ, being duly sworn, deposes and says:
1. I am ofcounsel to Richard E. Casagrande, the attorney for Claimant Jeffrey Malkan,
and, as such, I am fully familiar with the facts of the case.
2. I submit this affidavit in opposition to Defendant's motion for summary judgment
dismissing the above-referenced claim.
3. Defendant seeks dismissal of the Claim on the ground that Claimant's exclusive
remedy is a grievance pursuant to the collective bargaining agreement. As set forth in Claimant's
Memorandum ofLaw and the accompanying affidavit ofTara Singer-Blumberg, this contention has
no merit.
4. Defendant further seeks dismissal of the Claim on the basis that it was not timely
filed. As set forth in Claimant's Memorandum of Law, Claimant's damages did not accrue until
September 1, 2009, and therefore his Claim did not accrue until that date. His Claim was filed
within six months of September 1, 2009.
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5. In the alternative, as noted in Claimant's Memorandum ofLaw, the above-captioned
Claim can be deemed timely on the basis that it was preceded by a Notice of Intent, and then filed
within two years of the accrual of the Claim. (See Exhibit "A" hereto, which is a copy of the
Memorandum ofLaw and Affidavit filed in opposition to Defendant's motion to dismiss Claim No.
11635.)
6. Defendant further contends that the Claim must be dismissed for failure to comply
with Court of Claims Act 11, because (a) it is conclusory, and (b) it fails to set forth the accrual
date.
7. As discussed in Claimant's Memorandum of Law (citing Eastland v. State a/New
York, #2012-015-346, Claim No.120890) , the purpose of the 11(b) pleading requirements "is to
provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to
investigate and promptly ascertain the existence and extent of its liability." The above-captioned
Claim satisfies that purpose. As further discussed in Claimant's Memorandum ofLaw , Defendant's
reliance on the case law cited in its moving papers is misplaced.
8. As discussed in Claimant's Memorandum of Law, there is also no merit to
Defendant's contention that the Claim fails to set forth an accrual date. The Claim clearly states that
"In breach of [Claimant's] contractual rights, his employment was terminated August 31, 2009."
Further the Claim (including the expressly incorporated Attachment "B") specifies the damages that
accrued beginning September 1,2009, the day after the end of Claimant's employment.
9. For all of the reasons set forth in this Affidavit, in the Affidavit of Tara Singer-
Blumberg and in the accompanying Memorandum of Law, it is respectfully submitted that
Defendant's motion should be denied in its entirety.
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10. In the event the Court deems any aspect ofDefendant's motion to support its request
for dismissal ofthe Claim, Claimant requests that he be permitted to seek leave to amend the Claim.
~ ~ r A A M
Marilyn Ras . -Ortiz /
Sworn to before me this
7th day of December, 2012.
LINDA A. ROBERTS
Notary Public, State of New York
Qualified in Albany County
No. 4747072 A h
My Commission Expires I Yt d
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EXHIBIT "A"
STATE OF NEW YORK COURT OF CLAIMS
-.-..- - - - - - - - - - - - ~ - -
JEFFREY MALKAN,
Claimant,
-against-
Claim No. 116355
STATE OF NEW YORK (STATE UNIVERSITY
OF NEW YORK AT BUFFALO),
Hon. Jeremiah 1. Moriarity III
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
MARIL YN RASKIN-ORTIZ, ESQ.
Of Counsel
TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT .................................................. 1
ARGlJMENT ................................................................. 2
CONCLUSION ............................................................... 4
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PRELIMINARY STATEMENT
This memorandum of law is submitted in opposition to Defendant's motion to dismiss the
Claim. As set forth in the accompanying Affidavit and in this memorandum of law, in the event the
Court finds the Claim to be insufficient with regard to the "total sum claimed" aspect of Court of
Claims Act ll(b), Claimant's position is that the Claim should be deemed aNotice ofIntentto File
Claim, and treated as such.
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ARGUMENT
In Eastland v. State of New York, #2012-015-346, Claim No. 120890, the Court denied
defendant's motion to dismiss the claim as jurisdictionally defective under Court of Claims Act
("CCA") II (b). It noted that the purpose ofthe pleading requirements "is to provide a sufficiently
detailed description ofthe 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]).
The Court in Eastland found it sufficient that the Claim set forth the items of additional
work for which claimant sought compensation, even though the Claim did not specify the amounts
sought for each item of additional work. Specifically, the Court found that the Claim sufficiently
alleged the items of damage claimed, because the description of the work for which compensation
was claimed was sufficient "to enable defendant to investigate the circumstances giving rise to the
claim and make an informed decision regarding its liability."
Further, the Court stated that "[w]hile defendant's objection to the open-ended allegations
in the claim regarding ... the items of the damages alleged is well founded, its objection is an
evidentiary one which may be raised, if necessary, at the time of trial. Thus, the fact that claimant
alleges ... damages 'including but not limited to' specified items ... does not render an otherwise
sufficiently pled claim jurisdictionally defective."
Claimant does not agree with Defendant's contention that dismissal ofthe Claim is required
under Kolnacki v. State ofNew York, 8 NY3d 277 (2007) or Lepkowski v. State ofNew York, ] NY3d
20] (2003). In Lepkowski, the Claim alleged only that claimants "seek recovery of all unpaid
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overtime compensation for all hours worked over 40 hours in a work week and not compensated at
one and the regular rate." Jd. at 208. Tn Kolnacki, the Claim stated that Claimant had
"incurred injuries, damages, medical and hospital expenses which are to date undetermined and will
incur loss of earnings and impairment of health." Id. at 279.
In contrast, the Claim in the present case seeks judgment for an amount "equal [to] the total
value ofsalary and benefits" that will be lost by Professor Malkan ifhis employment is tenninated.'
This statement of damages "provide[s] a sufficiently detailed description of the particulars of the
claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its
liability" (see Eastland, supra), and therefore satisfies the purpose of the pleading requirements
contained in Court of Claims Act 11 (b).
In the event the Court finds, as urged by Defendant, that the Claim is jurisdictionally
defective for failure to state "total sum claimed," Claimant respectfully submits that the Claim
should be deemed a Notice ofIntent to File, and treated as such.
I At the point the Claim was filed, Claimant had rcceived a lettcr dated August 28, 2008
advising him that his employment would end on May 15,2009. See paragraph 3 of Claim,
attached to Defendant's motion to dismiss as Exhibit "A."
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CONCLUSION
For the reasons stated above, Defendants' motion to dismiss the Claim should be denied.
Dated: November 12,2012
Latham, New York
RICHARD E. CASAGRANDE, ESQ.
Attorney for Claimant Jeffrey Malkan
Office & P.O. Address
800 TroYMSchenectady Road
Latham, NY 12110-2455
Tel. No. (518) 213-6000
By:
Marilyn Ras n - o r t ~ iP,
OfCounse!
I04148/CWAl141
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STATE OF NEW YORK COURT OF CLAIMS
JEFFREY MALKAN,
Claimant,
STATE OF NEW YORK (STATE UNIVERSITY
OF NEW YORK AT BUFFALO),
Defendant.
AFFIDA VIT IN
OPPOSITION TO
DEFENDANT'S MOTION
TO DISMISS
Claim No. 116355
Hon. Jeremiah 1. Moriarity HI
STATE OF NEW YORK
ss.:
COUNTY OF ALBANY
MARILYN RASKIN-ORTIZ, being duly sworn, deposes and says:
I. I am ofcounsel to Richard E. Casagrande, the attorney for Claimant Jeffrey Malkan,
and, as such, I am fully familiar with the facts of the case.
2. I submit this affidavit in opposition to Defendant's motion for summary judgment
dismissing the above-referenced claim.
3. Defendant seeks dismissal of the Claim on the ground that it fails to set forth the
"total sum claimed."
4. Specifically, Defendant asserts that this Court has no subject matter jurisdiction of
the Claim, because the absence of "total sum claimed" is a fatal defect under Court of Claims Act
ll(b.)
5. Paragraph 4 of Claim No. 116355 states as follows:
The claim of Professor Malkan is for relief from the breach of his
contractual rights, including an order directing that SUNY at Buffalo
Law School prospectively abide by its contractual obligations, and a
judgment directing the payment of all future salary that may be lost
by Professor Malkan ifhis employment is terminated. The total sum
of this claim may not be calculated at this time since future salary is
dependent upon the result of collective negotiations, but will equal
the total value of salary and benefits that will be lost by Professor
Malkan.
6. The recitation in paragraph 4 of the Claim is sufficient to meet the requirements of
CCA ll(b). As discussed more fully in Claimant's accompanying memorandum of law, the
purpose of the 11(b) 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." (See Claimant's memorandum oflaw, citing Eastlandv. State ofNew York,
#2012-015-346, Claim No. 120890.) Wesubmitthat the Claim meets this standard, and that contrary
to Defendant"s contention, dismissal is not required under Kolnacki v. State ofNew York, 8 NY3d
277 (2007) or Lepkowski v. State afNew York, 1 NY3d 201 (2003). (See Claimant's memorandum
of law. )
7. In the event the Court finds the Claim deficient for failure to set forth the "total sum
claimed," we submit that the Claim constitutes a sufficient Notice ofIntent to File Claim, and that
it should be treated as such. Claimant reserves the right to submit a motion to this effect, ifthe Court
deems it necessary to effect such conversion in the event it does not find the Claim sufficient as a
Claim.
Sworn to before me this
12th day of November, 2012.
~ ( l l 2 k
No Public
I04209/cwal141
LINDA A. ROBERTS
Notary Public, State of New York
Qualified In Albany County
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No. 4747072 ~ I.
My CommissIon Expires 7 ~ ( J3