[*1]
Nash v City Univ. of N.Y.
2004 NY Slip Op 51728(U)
Decided on December 2, 2004
Ct Cl
Marin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 2, 2004
Ct Cl


LUKE NASH, Claimant

against

City Universit of New York, Defendant(s)




2004-016-075



Claimant's attorney:

Robert J. Barsch, Esq.

Defendant's attorney:

Eliot Spitzer, Attorney General

By: Grace A. Brannigan, Esq., AAG

Alan C. Marin, J.

This is the motion of Luke Nash for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, it is alleged that Mr. Nash was refused a job as a peace officer at the City University of New York following a psychological examination which was required during the application process. According to claimant, the exam was conducted by a person not licensed to practice psychology in the State of New York and during the course of a subsequent "Telephone Appeal," he was told by a doctor that "You [*2]have no rights when you go for a job! You're crazy and you're not getting the job!" Mr. Nash describes his claim as one for "unlawful disability discrimination . . . in denying Claimant employment based upon a disability or perceived disability." See ¶¶7 and 11 of the proposed claim.



Text of the decision:

Ordinarily, in determining a motion for permission to file a late claim, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

Here, however, a more fundamental issue must be addressed, i.e., whether this Court has subject matter jurisdiction over the proposed claim. Determinations of State administrative agencies may not be reviewed by the Court of Claims but must instead be challenged pursuant to CPLR Article 78 in Supreme Court. See, e.g., Rosenfeld v State of New York, Ct Cl dated August 2, 2002 (unreported, claim no. 105659, motion no. M-65262, cross-motion no. CM-65463, Ruderman, J., UID #2002-010-044 [FN1]), in which it was held that where claimant alleged he had been discriminated against when applying for a Court Assistant position, "the agency's determination must first be challenged administratively and then by way of an article 78 proceeding in Supreme Court . . ."

For the foregoing reasons, having reviewed the submissions,[FN2] IT IS ORDERED that motion no. M-68880 be denied.

Appendices:

Footnotes


Footnote 1:This and other decisions of the Court of Claims may be found on the Court's website: www.nyscourtofclaims.state.ny.us.

Footnote 2:The following were reviewed: claimant's notice of motion, affirmation in support with exhibits A-C, affidavit in support with exhibit A, the proposed claim; and defendant's affirmation in opposition with exhibits A and B.