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Lepkowski v. State12/18/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
We are asked whether the claims in this consolidated action comply with the substantive pleading requirements of section 11(b) of the Court of Claims Act. We conclude that the claims do not comply because they fail to allege the times when and the place where the claims arose, any items of damage or the total sum claimed. We further conclude that the State must follow the steps in CPLR 3022 in order to preserve any objection that a claim or notice of intention does not comply with the verification requirement in section 11(b).
I.
Claimants are public employees working in executive branch agencies in civil service titles allocated salary grade 23 or higher. They are all included within the Professional, Scientific and Technical Services Unit (PS&T;, which is represented by the Public Employees Federation (PEF) for purposes of collective bargaining with the State of New York.
On July 21, 1994, the Lepkowski claimants and other PS&T;employees sued the State in federal court, seeking unpaid overtime pay, liquidated damages and reasonable attorneys' fees, to all of which they claimed entitlement under the federal Fair Labor Standards Act (FLSA). In February 1996, the plaintiff-employees moved for partial summary judgment on liability and the State cross-moved for summary judgment to dismiss. The State contended, among other things, that the Eleventh Amendment guarantee of state sovereign immunity deprived the federal courts of subject matter jurisdiction. The United States District Court for the Northern District of New York rejected the argument, and held that the State was liable for overtime compensation to certain of these employees on account of "a minor aspect of one of [the State's] policies" (Close v State of New York, 1996 US Dist LEXIS 1748, *34, 1996 WL67979 [ND NY, Feb. 13, 1996]).
While the case was pending in District Court, however, the United States Supreme Court handed down Seminole Tribe v Florida (517 US 44 ), which significantly altered prior understandings of Congress' authority to abrogate the states' Eleventh Amendment immunity. In light of Seminole, the State succeeded when it again sought dismissal on Eleventh Amendment grounds (1996 US Dist LEXIS 12330, 1996 WL481550 [ND NY, Aug. 19, 1996]), and the United States Court of Appeals for the Second Circuit affirmed (125 F3d 31 ).
On January 22, 1998, roughly five months after the Second Circuit's decision, the Lepkowski claim was filed in the Court of Claims. The claim, which mimics the dismissed federal FLSA complaint, alleges that the employees worked over 40 hours in unspecified work weeks from July 1992 to the present; it does not identify where the claims arose, itemize damages or indicate the total sum sought. One individual claimant verified the claim, to which is attached a list of 377 claimants with their home addresses.
On February 19, 1997, claimants in Abelson served the Attorney General with a notice of intention to file an FLSA claim in the Court of Claims on behalf of 390 PS&T;employees. The Abelson claim, filed on January 21, 1998, alleges that claimants worked more than 40 hours in unspecified work weeks since April 1994, and does not identify where the claims arose, itemize damages or indicate the total sum sought. One individual claimant verified Abelson on behalf of all claimants, who listed their home addresses and identified the state agencies for which they worked.
By order filed on January 28, 1999, the Court of Claims consolidated Abelson into Lepkowski, finding that consolidation would allow for more efficie
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