Appendix — Clissuras v. City of New York
Supreme Court brief1988
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77 Court, U.S,
87-1] 62 LED
JAN 11 1968
JOSEPH F. SPANIOL, JR,
SUPREME COURT OF THE STATE OF NEW YORK CLERK,
APPELLATE DIVISION : SECOND DEPARTMENT
ALICE CLISSURAS,
Plaintiff-Appellant,
-against-
CITY OF NEW YORK, TEACHERS' RETIREMENT
BOARD OF THE CITY OF NEW YORK, TEACHERS'
RETIREMENT SYSTEM OF THE CITY OF NEW YORK,
BOARD OF HIGHER EDUCATION OF THE CITY OF
NEW YORK, CITY UNIVERSITY OF NEW YORK,
NEW YORK CITY TECHNICAL COLLEGE,
PROFESSIONAL STAFF CONGRESS/CUNY,
DEPARTMENT OF INSURANCE OF THE STATE OF
NEW YORK, and LEWIS ROSENBERG,
Defendants-Respondents.
RECORD ON APPEAL
VOLUME III OF THREE VOLUMES: PAPERS ON APPEAL TO N.Y.S.CT.AP.;
¥.6.8.CT. (pp. 658-901)
ALICE CLISSURAS
Plaintiff-Appellant, pro se
PETER M. ZIMROTH P. O. Box 021750
Corporation Counsel of the Brooklyn, NY~11202-0038
city cf New York (718) 875-6171
Attorney for City Defendants-
Respondents
100 Church Street D. NICHOLAS RUSSO
New York, NY 10007 Attorney for Defendant-
(212) 566-6458 Respondent Professional
. Staff Congress/CUNY
ROBERT ABRAMS 25 West 43d Street
Attorney General of the New York, NY 10036
State of New York (212) 354-1252
Attorney for City University
and Insurance Department BERGADANO, ZICHELLO & BABCHIK
Defendants-Respondents Attorneys for Defendant-
120 Broadwav Respondent Lewis Rosenberg
New York, NY 10271 420 Lexington Avenue
{212) 341-2641 New York, NY 10170
(212) 972-5560
KINGS COUNTY CLERK'S INDEX NO. 20522/85
TABLE OF CONTENTS
RECORD ON APPEAL -- VOLUME I: pp. 1-331; to App. Div. 2d
Parties and Attorneys.
Statement Pursuant to Rule 5531.
Notice of Appeal (City Defendants and Defendant
Insurance Department). ss) = « aw 8
Order Appealed From.
Oa el [bi
.
Notice of Appeal (Defendant Rosenberg)
ee
Order Appealed From. ......
Notice of Appeal (City University Defendants and
DG Os 8 ck ke ee
Order Appealed From.
Transcript of Hearing.
Se eT Pe ee oe
PS PR ee
Summons. ..
Verified Complaint
Answer of Defendant Rosenberg.
Stipulation Extending Time to Answer (City Defendants)
Extension of Time to Answer (Defendant Insurance
Department).
Note of Issue (Motion for Judgment by Default as against
Defendants City University and Union).
Notice of Motion of Judgment by Default of Defendants
City University and Union.
Affidavit in Support of Motion for Judgment by
Default of Defendants City University and Union.
Affidavit in Opposition to Motion for Default
Judgment (City University Defendants).
Attorney's Affirmation in Opposition to Motion
- for Default Judgment (Defendant Union)
Page
130
Plaintiff's Reply Affidavit in Support of
Motion for Judgment by Default ...
Peewee ©F BOCttement .... «ts et tw wee
Plaintiff's Letter on Settlement ...
Notice of Entry of Order Denying Default Judgment.
Order Denying Default Judgment ........
Affidavit in Support of Motion to Dismiss.
Memorandum of Law in Support of Motion to Dismiss.
Affidavit in Opposition tc motion to Dismiss
Plaintiff's Memorandum in Opposition to Motion to
Dismiss. Te eee
Reply Affidavit in Support of Motion to Dismiss.
Reply Memorandum in Support of Motion to Dismiss
Notice of Motion to Dismiss Complaint (Insurance
rec 6s 6 gs © - @ 6 © @ &» @ @
Affidavit in Support of Motion to Dismiss. ...
Memorandum in Support of Motion to Dismiss ...
RECORD ON AP. EAL -- VOLUME II: pp. 332-657; to App. Div
Plaintiff's Affidavit in Opposition to Motion to
Dismiss (Insurance Department) ...
Plaintiff's Memorandum in Opposition to Motion to
Dismiss (Insurance Department) ..
Notice of Motion to Dismiss Complaint (Defendant
ol SS ea an +
Affirmation in Support of Motion to Dismiss.
Memorandum of Law in Support of Motion to Dismiss.
Amended Notice of Motion to Dismiss Complaint
Notice of Motion to Dismiss Complaint (City Defendants).
. 2a
303
co
acf4
a ee es |
434.
Plaintiff's Affidavit in Opposition to Motion
CO DAGMARS 6 6 2 5 kG 8 ek eee 6 lt ee ee sl etl CUS
Plaintiff's Memorandum in Opposition ......... 470
Reply Affirmation in Support of Motion to Dismiss. . . 484
Notice of Motion to Dismiss Comptaint (City University
DOEGMEOEGD sé 6 + 6 6 6 4 teh thle ee oe huh lll RR
Affidavit in Support of Motion to Dismiss. ...... 493
Memorandum in Support of Motion to Dismiss ...... 518
Plaintiff's Affidavit in Opposition to Motion to
ns a)? 6 Aa ee ee Oe eee ea ee eee
Plaintiff's Memorandum in Opposition to Motion to
eMSGG. «os 2 6 ek 8 ee 6 8 ee ee ce Se «eS
Notice of Motion to Dismiss Complaint (Defendant Union). . 571
Affirmation in Support of Motion to Dismiss. ..... 573
Affidavit in Support of Motion to Dismiss. ...... 578
Memorandum of Law in Support of Motion to Dismiss. .. 586
Plaintiff's Affidavit in Opposition to Motion to
DESESR se ke WIR a BEE OS Oe Vee a ee ee eee
Plaintiff's Memorandum in Opposition to Motion to
oe SS ae ae ee ae eal ee ee ae ee ee eee ee ee er er ere
Reply Affirmation in Support of Motion to Dismiss. .. 647
Letter to Plaintiff from Senior Court Reporter ...... 656
COSCi£iGOtion OF BOCOSG 256 «6 bd 8 * Oe ee ie 1s) 8S
NOTE: There a®e nine defendants with four legal representa-
tions. All defendants made motions to dismiss the
complaint which were heard at three, separate hearings:
November 13, 1985 (City Defendants and Insurance Depart-
ment Defendant); December 16, 1985 (Defendant Rosenberg) ;
and December 20, 1985 (City University Defendants and
Defendant Union). Thus, there are three Notices of
Appeal. The Appellate Division, Second Department,
granted plaintiff's request to consolidate the three
appeals into one for the appellate proceedings.
RECORD ON APPEAL -- VOLUME III: pp. 658-901; to a -Y.S.Ct. of Ap.
.S.S.C
Appellant's Jurisdictional Statement (to Court of Page
Appeals of the State of New York). ....... . . . 658
Notice of Appeal (to Court of Appeals of the State of
i.) ee ee ee ee ee ee ee ee ee re ee ee Y
Decision and Order of Appellate Division, 2d Dept. ... . 666
Judgment (Shaw, J.S.C.) (N.¥.S.S.Ct.). - 2 «© «© + + s+ we ew 670
Decision ‘perastets, £.6.C.) G.7.8.-8.CG.)} « « es @ © o@ 6 se OFS
Order (Hurowitz, J.S.C.) (N.¥.S.S.Ct.) . - - - + «+ © « + + 676
Memorandum Decision (Shaw, J.S.C.) (N.¥.S.S.Ct.) . ... . 678
a | ee See ee ee ee ee es ce es Se ee ee ee ee ee ee ee es
Form C Civil Appeal Preargument Statement. ..... . 682
Form D Transcript Information Civil Appeal ..... . 685
Plaintiff-Appellant’s Brief. . . .. ++ « «© « «© «© « « « « 686
Defendants-Respondents' Brief (State Defendants) .... . 74l
Brief for Defendant-Respondent Lewis Rosenberg ..... «. /66
Brief for Defendant-Respondent Professional Staff Congress /8(
Plaintiff-Appellant's Reply Brief (to Defendants State,
Rosenberg, and Professional Staff Congress)
Brief for Respondents City Defendants. ........ . «. 818
Plaintifr-Appellant's Reply Brief (to City Defendants) . . 841
Plaintiff-Appellant's Oral Argument Statement. ..... . 862
Letter to App. Div. Re SDHR and EEOC ...... +. + + « 872
Letter from Clerk of Court of Appeals Re Sua Sponte
Inguiry. .« - - «+ «+ «© «© « » = 6 © 6 « 2 6 « ee 0 BFS
Plaintiff-Appellant's Letter Re Sua Sponte Inguiry. . .- . 876
Letter of State Defendants-Respondents Re Sua Sponte
Imguiry. «22 se ee ee ee we we ew we ow 8 8 8 wo BB2
Letter of Defendant Rosenberg Re Sua Sponte Inguiry. ... 884
Letter of Plaintiff-Appellant Replying to Defendants-
Respondents’ Sua Sponte Arguments. ..... ++ + + + 885
Decision and Order of App.Div., 2d Dept. Denying
Plaintiff-Appellant's Request for Records.
Plaintiff-Appellant's Notice of Motion for Records
Affidavit in Support of Motion for Records
Sua Sponte Dismissal of Appeal (Court of Appeals of the
State of Mew YOrR. . 1 «© + 6+ © © © @ © «@ “ae GY Sar
Order Disimissing Appeal (Clerk of Court of Appeals of
ee ere Con ree mee. . g e a es Oe ee ee Sl
ALL PARTIES AND THELR
ATTORNEYS _
CLISSURAS v. CITY OF NEW YORK, et al.
N.Y.S. Ct. of Ap. , Mo. No.1166SSD74
N.Y¥.S.S.Ct. App. Div. 2d, Nos. 3774E-3776E
N.Y¥.S.S.Ct. Kings Co., Index No. 20522/85
Plaintiff-Appellant, ALICE CLISSURAS, pro se
P. O. Box 021750
Brooklyn, NY 11202-0038
(718) 875-6171
City Defendants-Appellees , CITY OF NEW YORK,
TEACHERS' RETIREMENT BOARD OF THE CiTy OF
NEW YORK, TEACHERS' RETIREMENT SYSTEM OF
THE CITY OF NEW YORK
PETER L. ZIMROTH, ESQ.
Corporation Counsel of the City of NY
Attorney for City Defendants-Appellees
Michael Adler, Asst. Corp. Counsel
100 Church Street
New York, NY 10007
(212) 566-4331
State Defendants-Appellees, BOARD OF HIGHER
EDUCATION OF THE CITY OF NEW YORK, CITY
UNIVERSITY OF NEW YORK, NEW YORK CITY
TECHNICAL COLLEGE, and DEPARTMENT OF
INSURANCE OF THE STATE OF NEW YORK
ROBERT ABRAMS, ESQ.
Attorney General of the State of NY
Attorney for State Defendants-Appellees
Anne Ehrenkranz, Asst. Atty. Gen.
120 Broadway
New York, NY 10271
(212) 341-2641
Union Defendant-Appellee, PROFESSIONAL STAFF
CONGRESS/CUNY
D. NICHOLAS RUSSO, ESQ.
Director of Legal Affairs, Professional
Staff Congress/CUNY
Attorney for Union Defendant-Appellee
25 West 43d Street 2
Jew York, NY 10036
(212) 354-1252
Union Attorney Defendant-Appellee, LEWIS
ROSENBERG
BERGADANO, ZICHELLO, & BABCHIK, ESQS.
Attorneys for Union Attorney Defendant-
Appellee
Ann McIntyre, Of Couns:
420 Lexington Avenue
New York, NY 10170
(212) 972-5560
ee ee ee ee
Rec. ON Ap., P. 658
PLAINTIFF'S 9 ae ears
STATEMENT TO
COURT OF APPEALS (PP. 658-679)
/
COURT OF APPEALS OF THE STATE OF NEW YORK
ALICE CLISSURAS,
Plaintiff-Appeliant,
-against-
CITY OF NEW YORK,
TEACHERS' RETIREMENT BOARD OF THE CITY OF NEW YORK,
TEACHERS’ RETIREMENT SYSTEM OF THE CITY OF NEW YORK,
BOARD OF HIGHER EDUCATION OF THE CITY OF NEW YORK,
CITY UNIVERSITY OF NEW YORK,
NEW YORK CITY TECHNICAL COLLEGE,
PROFESSIONAL STAFF CONGRESS/CUNY,
DEPARTMENT OF INSURANCE OF THE STATE OF NEW YORK, and
LEWIS ROSENBERG,
Defendants-Respondents.
APPELLANT'S JURISDICTIONAL STATEMENT
This appeal is taken from the Supreme Court of the State of
York, Appellate Division, Second Department.
The Notice of Appeal is dated July 14, 1987, and it was
and filed on July 14, 1987.
An unsigned Appellate Division Decision and Order (one paper)
was mailed to plaintiff-appellant, postmarked June 23, 1987
by the Law Department of the City of New York, representing
the City Respondents; said Decision and Order was entered
June 22, 1987.
There are four légal representations for the nine defendant
respondents, as follows:
PETER L. ZIMROTH, ESQ.
Corporation Counsel of the City of New York
Francis F. Caputo and Michael S. Adler, of Counsel
Attorneys for Defendants-Respondents City of New Yo
Teachers’ Retirement Board of the City of New York,
Teachers' Retirement System of the City of New Yo
100 Church Street
New York, NY 10007
(212) 566-4331
The
REC. on Ap., P. 659
ROBERT ABRAMS, ESQ.
Attorney General of the State of New York
Anne Ehrenkranz, of Counsel
Attorneys for Defendants-Respondents Board of Higher
Education of the City of New York, City University of
New York, New York City Technical College, Department
of Insurance of the State of New York
Two World Trade Center
New York, NY 10047
(212) 488-5744
D. NICHOLAS RUSSO, ESQ.
< eal.
Director of Legal Affairs of the Professional Staff Congress/c¥F
Attorney for Defendant-Respondent Professional Staff Congress
CUNY
25 West 43d Street
New York, NY 10036
(212) 354-1252
BERGADANO, ZICHELLO & BABCHIK, ESQS.
Ann Teresa McIntyre, of Counsel
Attorneys for Defendant-Respondent Lewis Rosenberg
420 Lexington Avenue
New York, NY 10170
(212) 972-5560
following papers are attached at the end hereof:
The Notice of Appeal
The Decision and Order of the Appellate Division, Second
Department
There was no opinion or memorandum of the Appellate Division
Special Term Judgment of the Supreme Court of the State of
New York, County of Kings (Shaw, Jr.), entered in the
office of the Clerk of the County of Kings, on the 19th
day of December, 1985, dismissing the complaint as
against the City Defendants and the Defendant Department
of Insurance
Special Term Memorandum of the Supreme Court, Kings County
(Bernstein), entered in the office of the Clerk of Kings
County, on the 2d day of January, 1986, dismissing the
complaint as against Defendant Lewis Rosenberg
Special Term Order of the Supreme Court, Kings County
(Hurowitz), entered in the office of the Clerk of Kings
County, on the 19th day of February, 1986, dismissing the
complaint as against the City University Defendants and
the Defendant Professional Staff Congress/CUNY
Special Term Memorandum of the Supreme Court, Kings County
(Shaw, Jr.), informal finding and conclusion, dated
November 19, 1985
Rec. On Ap., Pp. 660
Plaintiff brought this action against the nine defendants,
as follows:
Employment Discrimination: Plaintiff was discriminated
against on the basis of sex and religion. She was
deprived of her employment moneys and the laws were
not applied to her equally as Constitutionally required.
New York State Constitution, Arti¢leI, Section 2;
Melanie v. Board of Higher Education of the City of
New York, 561 F.Supp. 768 (1983); CPLR §214 (2); §218 (a);
Constitutional due process rights have been withheld
throughout; i.e., no hearing of this cause of action has
been held to date.
Fraud: The employment discrimination was effected by fraudu-
lent misrepresentations of fact and concealment of the
facts. CPLR §213 (8)
The issues of fraud, concealment, and misrepresentation
were dismissed without a trial.
rh
Conspiracy: All cf the defendants concealed the causes o
action herein. Connor v. Bryce, 170 N.Y.S. 94, 95-96
(1918).
Breach of Contractual and Fiduciary Duties: Membership in
a public retirement system in the State results in a
contractual relationship, which was breached herein.
In'-addition, no accounting has been made to date of
plaintiff's moneys. New York State Constitution,
Article V, Section 7; CPLR §213.
Deprivation of Constitutional Rights to trial by jury and
to counsel.
The many issues of fact in this action were dismissed
without trial (and also without hearing).
Gross Negligence: The many errors made by fiduciary
defendants were not corrected.
Abuse of Plaintiff's Person, Rights, and Property
All of the above issues were raised in the Second Department
and Kings County. The above causes of action were dismissed
by Kings County on the ground of all the causes being barred
by a 4-month statute of limitations. The Second Department
affirmed the dismissal on said ground.
REC. ON Ap., P. 661
Not one of the above causes is barred by a 4-month limitat
Courts and the Defendants have not responded to the
has documented all of the causes of action; the
ants have not offered any documentation or substant
tion of their arguments.
The plaintiff is pro se due to the refusal of over 30 att
to represent her. The Courts and the Defendants appear t¢
tactics to take advantage of Plaintiff's limited legal bas
ground.
The Plaintiff will, in addition to the above, raise all ot}
relevant issues.
ited July 15, 1987
Plaintiff hereby attests that on July 15, 1987, she served
posing counsel, by mail, with a copy of this paper with
Q
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ALICE CLISSURAS
Plaintiff-Appellant, pr
P. O. Box 021750
Brooklyn, NY 11202-003
(718) 875-6171
; ct.
“agains
> > *
BOARD OF THE CITY OF NEW YORK, TEACHER
CITY OF NEW YORK, TEA -RS* RETIREMENT
= 7
2
RETIREMENT SYSTEM OF THE CITY OF NEW YORK, :
BOARD OF HIGHER EDUCATION OF THE CITY
NEW YORK, CITY UNIVERSITY OF NEW YORK,
NEW YORK CITY TECHNICAL COLLEGE,
PROFESSIONAL STAFF CONGRESS/CUNY,
DEPARTMENT OF INSURANCE OF THE STATE
NEW YORK, and LEWIS ROSENBERG
Vial ere) | ay
, + *
Fr ~ > > lake . >
eal is i riqd
= - ‘ + : , ;
r { e paper) \ : i
+ - TY ? ~~ > } Try ” - + ~>
irt, Second Judicial Department, ent
"le k - 1? wu?
Clerk of said Appellate Division, ont
which unanimously affirmed the three
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Rec. On Ap.. Pp. 663
of the Supreme Court of the State of New York, County of Kings,
entered in the office of the Clerk of the County of Kings, on
the 19th day of December, 1985 (Shaw, Jr.), as against the City
Defendants and the Defendant Department of Insurance: on the
2d day of January, 1986 (Bernstein), as against Defendant Lewis
Rosenberg; and on the 19th day of February, 1986 (Hurowitz), as
against the City University Defendants and the Defendant
Professional Staff Congress/CUNY; which three Orders dismissed
the complaint as against all of the defendants herein on the
ground that plaintiff's claims of employment discrimination,
fraud, concealment of causes of action, conspiracy, deprivation
of Constitutional rights, and breach of contractual and fiduciarf
duties, were barred by a four-month statute of limitations,
and the said plaintiff appeals from each and every part of said
order of the Appellate Division, and from the whole thereof.
Dated: July 14, 1987.
Yours, etc.,
ALICE CLISSURAS
Plaintiff-Appellant, pro se
P. O. Box 021750
Brooklyn, NY 11202-0038
TO: (718) 875-6171
The Clerk of the County of Kings
Attorneys for the Defendants-Respondents
(Names, addresses, and telephone
numbers appear on the next page.)
|
o- 24m.
Rec. On Ap.. P. 664
PETER L. ZIMNOTH, ESQ.
Corporation Counsel of the City of New York
Francis F. Caputo and Michael S. Adler, of Counsel
Attorneys for Defendants-Respondents City of New York,
Teachers’ Retirement Board of the City of New York, and
Teachers’ Retirement System of the City of New York
100 Church Street
New York, NY 10007
(212) 566-4331
ROBERT ABRAMS, ESQ.
Attorney General of the State of New York
Anne Ehrenkranz, of Counsel
Attorneys for Defendants-Respondents Board of Higher
Education of the City of New York, City University of
New York, New York City Technical College, Department
of Insurance of the State of New York
Two World Trade Center
New York, NY 10047
(212) 488-5744
D. NICHOLAS RUSSO, ESQ.
Director of Legal Affairs cf the Professional Staff Congress/CUNY
Attorney for Defendant-Respondent Professional Staff Congress/
CUNY
25 West 43d Street
New York, NY 10036
(212) 354-1252
BERGADANO, ZICHELLO & BABCHIK, ESQS.
Ann Teresa McIntyre, of Counsel
Attorneys for Defendant-Respondent Lewis Rosenberg
420 Lexington Avenue
New York, NY 10170
(212) 972-5560
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Your reference to the above File Number on all documents and correspondence would be appreciated
SUPREME COURT OF THE STATE OF NEW YORK ©
APPELLATE DIVISION: SECOND DEPARTMENT
——
DECISION 6/22/87. APP. BiV. (Pr. 666-669)
AD24 Acgued March * (oa
— ————
LAWRENCE J. BRACKEN. J.P
-MARLES 8. LAWRENCE
JOSEPH J. KUNZEMAN
ARTHUR D. SPATT. JJ.
I774E
377SE
I776E
Alice Clissucas. appellant. DECISION & ORDER
v City of New York. et al
respondents.
Alice Clissucas. Brooklyn. N.Y.. appellant pro se
Petec L. Zisroth. Corporation Counsel. New York. N.Y
(Francis F. Caputo and Michsel S. Adler of counsel). for
cespondents City of New York. Teachers’ Reticement Board
of the City of New York. and Teachers’ Retircement Syster
of the City of New York.
Robect Abrams. Attorney-General. New York. N.¥. (Anne
Ehcenkranz of counsel). for cespondents Board of Higher
Education of the City of New York. City University of New
York. New York City Technical College and Department of
Insucance of the State of New York.
D. Nicholes Russo. New York. N.Y... for respondent
Professional Statft Congress/CUNY.
Becgadano. Zichello & Babchick. New York. N.Y. (Ann
Tetesa Mcintyre of counsel). for respondent Lewis
Rosenberg.
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Rec. on Ap. P. 670
JUDGMENT 12/18/85 (SHAW, J.S.C.) pr. 670-672
At a Special Term, Part 1 of the
Supreme Court of the State of New
York, County of Kings at the
Courthouse, Civic, Center, Brooklyn,
New York on the SV day of December,
1985. /
PRESENT:
HON. JAMES H. SHAW, JR.
JUSTICE.
snvsbttasiscieeeeaaeauaidaesclaaetasaincaaanaid aii dane ah eli adi aaeg x
ALICE CLISSURAS,
Plaintiff, PROPOSED JUDGMENT
-against- Index No. 20522/85
CITY OF NEW YORK, “~ TEACHERS'
RETIREMENT BOARD OF THE CITY OF NEW
YORK,“TEACHERS' RETIREMENT SYSTEM OF
THE CITY OF NEW YORK/BOARD OF HIGHER
EDUCATION OF THE CITY OF NEW YORK,
CITY UNIVERSITY OF NEW YORK, NEW YORK
CITY TECHNICAL COLLEGE, PROFESSIONAL
STAFF CONGRESS/CUNY,~DEPARTMENT OF
INSURANCE OF THE STATE OF NEW YORK,
and LEWIS ROSENBERG, ~
Defendants.
Plaintiff herein having commenced this action for $500,000 in
compensatory damages and $2,000,000 in punitive damages and for a judgment
directing defendants to undertake an accounting of plaintiff's pension moneys;
and
Defendants City of New York, Teachers' Retirement Board of the
City of New York, and Teachers' Retirement System of the City of New York
Rec. ON AP., P. 671
(City defendants) having moved pursuant to CPLR § 3211(a)(5) to dismiss the
complaint because the action is barred by the statute of limitations; ond .
Defendant Department of Insurance of the State of New York
(Insurance Department) having moved pursuant to CPLR §§ 3211(a)(2)
3211(a)(5), and 3211(a)(7) to dismiss the complaint because the Court lacks
subject matter jurisdiction of plaintiff's claim for damages, the action is barred
by the statute of limitations, and the complaint fails to state a cause of action;
and
The aforementioned motions to dismiss having been heard by the
Honorable James H. Shaw, Jr., at a Special Term, Part I of this Court, held at
the Courthouse located at the Civic Center, Brooklyn, New York on November
13, 1985; and
The Court having considered the said motions and written
memoranda and oral argument in support thereof, as well as plaintiff's written
and oral responses thereto;
NOW, upon reading and filing the Notice of Motion to Dismiss of the
kundatogl, pet Cetetanpa Dress
City defendants, and the supporting affidavit of Suzanne Lank and “all exhibits
vel. bey
annexed thereto, the Notice of Motion to Dismiss of the Insurance Department,
Artin, Oale tats 178
and the supporting affidavit of Sue Barnett Bohringer, and all exhibits annexed
thereto, plaintiff's affidavit in opposition to the City defendants' motion to
Lat~<
re 1778 O
dismiss, and all exhibits annexed thereto, plaintiff's affidavit: in opposition,to
oo a effelamach it epee, sean “3 AA Ob sien hentai Peidiabatneds, 19 2\-
the Insurance Department's motion to dismiss,and all exhibits annexed thereto,
LT a WL Mevrddek 2,
dh
‘?
and the affirmationsof Suzanne Lank in reply to plaintiff's affidavit responding
to the City defendants’ motion to dismiss; and plrintiff having appeared pro se;
City defendants having appeared by FREDERICK A. O. SCHWARZ, JR.,
Rec. On Ap., Pp. 672 |
Corporation Counsel) of the City of New York, by Suzanne Lank; and
Insurance Department having eppeared by Robert Abrams, Attorney General of
the State of New York, by Sue Barnett Bohringer; and upon the written
memorandum decision of this Court dated Hovember 19, 1985;
NOW, upon the motion of FREDERICK A. O. SCHWARZ, JR.,
Corporation Counsel of the City of New York, by Suzanne Lank, Assistant _
Corporation Counsel, attorney for City defendants, it is
ADJUDGED that plaintiff's causes of action against both the City
defendants and the Insurance Department are barred by the four-month statute
of limitations; and the complaint is dismissed as to the City defendants and the
Insurance Department, and fle ce LA ca pews acelin
? -
ENTER:
oe Ui “ip
Rec. ON Ap., Pp.
673
DECISION 1/2/86 (BERNSTEIN, J.S.C.) pp. 673-675
MEMORANDUM
OURT: Kings COUNTY
2)
By Bernstein, A.D. J.
Plaintiff, DatedDecember 24, 19.85
vs.
ity of New York, et al., SPECIAL TERM PART I
Defendants. Index No. 20522/ 85
The plaintiff brings this action against all
of the defendants alleging conspiracy to defraud her
from the true amount of pension that she has earned.
She claims that the co-conspirator defendants have
concealed from her the true amount of her pension,
the rights to which she is entitled and the fact
that certain increments to which she is due were
not included in her pension. The defendant Rosenberg
moves to dismiss the complaint on the grounds that it
fails to set forth a cause of action. The defendant
Rosenberg is an attorney who was retained by the
defendant on or about February 6, 1983 by the Pro-
fessional Staff Congress/CUNY, the union representing
the plaintiff. Thereafter, on or about February L5,
1983 the defendant Rosenberg and the plaintiff met in
itis. en
Rec. ON Ap., P. 674 |
1O
his office. Thereafter, on or about April 5, 1983
the defendant Rosenberg wrote to the plaintiff
withdrawing as her attorney. In the brief sub-
mitted by the plaintiff she details the claim
against the defendant Rosenberg as follow:
"Defendant Rosenberg met with plaintiff
once on February 15, 1983. She de-
tailed the problems as she knew them
at that time and she supported this
with the documentation which she
had at that time. Defendant Rosenberg
did not discuss pleaintiff's (sic) with
her; he did not discuss plaintiff's
rights or choices; he did not give her
any direction. At the end of the
meeting, he told her to get an
actuary."
it is obvious from the very detailed motion
papers submitted by the plaintiff that all of her
claims occurred prior to the meeting with the de-
fendant Rosenberg and that she has suffered no
damages by virtue of any malpractice or negligence
on the part of the defendant Rosenberg.
She alleges in her conclusion that the causes
of action against Rosenberg are''concealment of
the causes of action, conspiracy, and breach of
contract and fiduciary duty, all of which occurred
upon contract with defendant Rosenberg and after such
‘contract and are continuing to date."
Obviously, the plainti
-auses of action in this very
= — c
ending and, therefore, has
The motion is granted.
REC. ON Ap.. P. 6
Cs ° . ,
. Ace 7 ¢- }
A 4 LS as sercCinyg il
action p resent
uffered no damages.
Rec. ON Ap.,
ORDER 1/14/86 (RHUROWITZ. J.S.C.). pp. 676-677
At a Special Ter
the Supreme Cc
State of N
Kings, at
Cw
mes 4 7
-ivic Center,
, * vs ot
New York,
+
= _—
+ a AVaT y ,
t
HON. BARRY 2. tURO:
St es Te an aba ap ae ana ap dn aendanenas a oe oe ee ee es W
CITY OF NEW YORK, TEACHERS’ RETIREMENT :
BOARD OF THE CITY OF NEw YORK, TEACHERS’
RETIREMENT SYSTEM OF THE CITY OF NEW
YORK, BOARD OP HIGHER EDUCATION OF THE
CITY OF NEW YORK CITY UNIVERSITY OF
NEW YORK, NEW YORK CITY TECHNICAL
COLLEGE, PROFESSIONAL STAFF CONGRESS/
CUNY, DEPARTMENT OF INSURANCE OF THE
STATE OF NEW YORK and LEWIS ROSENBERG,
siue
UPON the notice of mot ion and the
Barnett Bohringer, dated November 26, 1985
exhibits attached thereto. in Support of the
defendants Board of Higher Education of the City of New
City University of New York and New York City Technica}
(the "City University defendants") to di
ismis
an
3
Ir Any
wh cc?
P. 676
7% @& hh + h
wa «
+ +heo
‘ ‘rms
+
”)
motion
7
,
e exhibits att
ef & . Ty + +
City Universit
a ioale nf Nic
— > » — * _->
e
of defendant Professional Staff Céngress/CUNY
- “Am } :
ne complaint or, in
1ffidavit of plaintif
af fidavi fF plainti
+ > ~s + Den frnee
. ~ ~ - - 2
rr. er . .
ee ee ] n >I U. l
=
together with the exh
€ =
c o
r tne motion of Prof
TT :
Jnivers
t having been
t)
ORDERED that
ity defendants
ORDERED that
ional
\ { )
oo 2s. aL Pr
> |
heard on December 20,
|
~
Staff Congress/CUNY
Ae., Pp. 677
REC. ON
j ’
f-comber lw, Ly i {
f
‘
las 31sso, dated December 6, 1939 ;
- . } €e- 3 ors
its attacheuw thereto, the affidavit of
mh 7 2 ; _
ecember 9, 1985, in support ft
han
pa Aton
} " a = .* IAM a }
e aiternative, for summary udgment, t¢t
4) ws
? r mam h " Jaac . + ~~ ; ~ +
lated December “A@; 1985 in oppositi
na +a FF Inaress UNY Kho or
2] ff ongres CUNY, rep]
l } >, dated December 19, 19845
Sional Staff Congress/CUNY, and oral
4
1985S, it is
the
4s
motigqn to dismiss of the Gity
Ch A
S grantedg and it is further '
the motion to dismiss of
is grantedu~\ \“ *«
~ Pie n
Se
Rec. ON Ap.. P. 678
MEMORANDUM DECISION 11/19/85 (SHAW, J.S.C.)
ener e D> we MEMORANDUPA
UPREME COURT COUNTY
“LICE CLISURRASM By James H. Shaw, Jr. jl. s. c.
Plaintiff :
2 | Dated November 19, 19 &
CITY OF NEW YORK, et al.
os
The motions by the City of New York and the Department o- insur
of the State of New York are decided simultaneously.
Plaintiff's law suits were commenced some three years subsquent to
her retirement and are subject to a four month Statute of Limitations
th causes of action are time barred.
Plaintiff's complaint against each defendant is dismissed.
Settld Judgment Ye \ |
lt 7, \py
hn dy LLM
Rec. on Ap.. p. 681
D. NICHOLAS RUSS
Attorney for Defendant-Respondent Professional Staff
Congress /CUNY
25 West 43d Street
New York, NY 10036 ;
(212) 354-1252
BERGADANO, ZICHELLO 6 BABCHIK
Attorneys for Defendant-Respondent Lewis Rosenberg
Ann McIntyre, of Counsel
420 Lexington Avenue
New York, NY 10170
(212) 972-5560
— OS ee
Rec. On Ap., Pp. 682 |
FORM C CIVIL APPEAL (pp. 682-684)
| SUPREME COURT OF THE STATE OF NEW YORK
i APPELLATE DIVISION : SECOND DEPARTMENT
me eis
ALICE CLISSURAS,
Plaintiff-Appellant,
~against-
CITY OF NEW YORK, TEACHERS' RETIREMENT : FORM C
BOARD OF THE CITY OF NEW YORK, TEACHERS' CIVIL APPEAL PRE-
RETIREMENT SYSTEM OF THE CITY OF NEW YORK, : ARGUMENT STATEMENT
BOARD OF HIGHER EDUCATION OF THE CITY OF
NEW YORK, CITY UNIVERSITY OF NEW YORK, :
| NEW YORK CITY TECHNICAL COLLEGE,
| PROFESSIONAL STAFF CONGRESS/CUNY,
DEPARTMENT OF INSURANCE OF THE STATE OF
NEW YORI., and LEWIS ROSENBERG,
}
| Defendants-Respondents. :
|
|
APPEAL FROM: |
:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No. 20522/85
Motions to Dismiss Complaint as against the City
Defendants and the Department of Insurance of
the State of New York; heard November 13, 1985,
before the Honorable James H. Shaw, Jr.; Order
Dismissing Complaint filed March 10, 1986; Notice
of Appeal filed December 9, 1985;
Motion to Dismiss Complaint as against Lewis Rosenberg;
heard December 16, 1985, before the Honorable
' A. D. Bernstein; Memorandum Decision dismissing the |
| complaint filed January 2, 1986; Notice of Appeal
filed January 8, 1986;
Motions to Dismiss Complaint as against the City 1
| University Defendants and the Professional Staff
Congress/CUNY; heard December 20, 1985, before the
Honorable Barry Hurowitz; Order Dismissing Complaint
filed February 19,1986; Notice of Appeal filed
January 8, 1986.
tee
'| NAMES OF COUNSEL:
| METHOD OF DISPOSITION IN TRIAL COURT:
Rec. ON Ap., P. 683
For Appellant: ALICE CLISSURAS, pro se
ROBERT ABRAMS, ESQ.
D. NICHOLAS RUSSO, ESQ.
P. O. Box 1750
Brooklyn, NY 11201
718-875-6171
For Respondents:
FREDERICK A. O. SCHWARZ, JR., ESQ.
Corporation Counsel of the City of New York 4
Attorney for Defendants City of New York, Teachers’ tg
Retirement Board of the City of New York, jescuae
Retirement System of the City of New York ("City |
Defendants") PE
Suzanne Lank, Asst. Corp. Counsel 4
100 Church Street i
New York, NY 10007 4
212-566-6458 q
Attorney General of the State of New York
Attorney for Board of Higher Education of the City of
New York, City University of New York, New York 2
City Technical College ("City University Defendants"
and Department of Insurance of the State of New York
Sue Barnett Bohringer, Asst. Attorney General
Two World Trade Center
New York, NY 10047 F
212-488-5744
= ih ett
Director of Legal Affairs
Attorney for Defendant Professional Staff Congress/CUNY
25 West 43d Street
New York, NY 10036 4
212-972-5560 i
BERGADANO, ZICHELLO & BABCHIK, ESQS.
Attorneys for Defendant Lewis Rosenberg
Ann McIntyre, Counsel
420 Lexington Avenue
New York, NY 10170
212-972-5560
RG ND hawt
Appeal from three Orders dismissing the Complaint as again
all defendants.
REC. ON Ap., P. 684
|| BRIEF DESCRIPTION OF NATURE OF CASE AND RESULT BELOW: ang
Plaintiff brought this action against 9 defendants. One
attorney represents th three City Defendants; a
second attorney represents the three City University |
Defendants and the New York State Department of Insurance;
a third attorney represents the Union; and a fourth
attorney represents the Union Attorney. The causes of
action include employment discrimination based on sex
and religion, conspiracy as to civil rights violations,
deprivation of due process rights, fraud, gross negli-
gence, breach of contract and breach of fiduciary duty.
Five motions to dismiss the complaint were made, which
motions were heard at three Special Terms. The complain
was dismissed as against all defendants.
ISSUES PROPOSED TO BE RAISED ON APPEAL:
At the first two hearings, no minutes were taken. I,
Plaintiff intends to raise all issues on appeal,
appellant pro se, hereby certify that I have obtained
the transcript of the last of the three hearings, for
which transcript I have paid its cost.
as follows: |
All of plaintiff's causes of action and documentation
which substantiates the allegations and/or averments;
arguments as to the timeliness of all causes of action;
errors in the papers and arguments of defendants; errors
in procedures as to attorneys for defendants and Court
below; and all other relevant issues.
/s/
ALICE CLISSURAS
Appellant pro se
August 4, 1986
| COURT REPORTER ACKNOWLEDGMENT
| DATED: August 4, 1986 /s]
Rec. ON Ap., P. 685
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND DEPARTMENT
- - =- = -—-— — — — ee ere Ke Kr Kr Fr Fr rll rll rl er Uc KhUMX
ALICE CLISSURAS,
Plaintiff-Appellant,
; FORM D 3
~against- : BS
TRANSCRIPT INFORMATIO#
CITY OF NEW YORK, et al., : CIVIL APPEAL
Defendants-Respondents.:
DISPOSITION OF COPIES: (1) to Clerk of this Court
{2) and (3) to court reporter
(4) to counsel for respondent
(5) retained by counsel for appellant.
APPEAL FROM: SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No. 20522/85
Judge: Hon. Barry Hurowitz, J.S.C.
Court Reporter: Mary Ellen Raftery, CSR
Appellant: Alice Clissuras, pro se
I, appellant pro se, hereby certify that I have paid the cost of)
the transcript to the Court Reporter and I hereby certify that
I have mailed a copy of the transcript to each of the four
attorneys for defendants-respondents.
ALICE CLISSURAS, Appellant pro
Return one copy to Clerk of the Appellate Division.
Date of Transcript: |
|Number of Pages: , )
_ =
{
DATED:
j
Signature of Court Reporter _
NOTE: THE TRANSCRIPT REFERRED TO ABOVE APPEARS IN THIS :
RECORD. IN VoL. I, PP. 32-66.
REC. ON Ap., P. 686
To be argued by
PLAINTIFF-APPELLANT'S BRIEF |
(pp. 686-740) ee hecuested
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND DEPARTMENT
ALICE CLISSURAS,
Plaintiff-Appellant,
jJainst-
CITY OF NEW YORK, TEACHERS' RETIREMENT
BOARD OF THE CITY OF NEW YORK, TEACHERS'
RETIREMENT SYSTEM OF THE CITY OF NEW YORK,
BOARD OF HIGHER EDUCATION OF THE CITY OF
NEW YORK, CITY UNIVERSITY OF NEW YORK,
NEW YORK CITY TECHNICAL COLLEGE,
PROFESSIONAL STAFF CONGRESS/CUNY,
DEPARTMENT OF INSURANCE OF THE STATE OF
NEW YORK, and LEWIS ROSENBERG,
Defendants-Appellees,.
PLAINTIFF-APPELLANT'S BRIEF
ALICE CLISSURAS
Plaintiff-Appellant, pro se
P. O. Box 1750
Brooklyn, NY 11201
(718) 875-6171
KINGS COUNTY CLERK'S INDEX NO. 20522/85
TABLE OF CONTENTS
Rec. ON Ap., P. 687
TABLE OF AUTHORITIES
PARTIES AND ATTORNEYS. . .
STATEMENT PURSUANT TO RULE 5531.
STATEMENT OF QUESTIONS PRESENTED
STATEMENT OF FACTS .«. « « « »
A. AS TO AMOUNT OF PENSION.
B. AS TO CREDIT FOR PRIOR SERVICE
C. AS TO MAINTENANCE OF STATEMENTS OF ACCOUNTS.
D. AS TO DISCOVERY OF THE CAUSES OF
E. AS TO LEGAL REPRESENTATION
F. AS TO GOVERNMENTAL AGENCIES.
G. DEPRIVATION OF RIGHTS. .
H. THE PROCEEDINGS BELOW. ..
ARGUMNEMS © «6 eC Sa Va 3 ets
PRELIMINARY STATEMENT ....
COUNTER-STATEMENTS AND ARGUMENTS OF
A. As to the City Defendants
ACTION.
THE CASE.
B. As to Defendant Insurance Department.
C. As to Defendant Rosenberg
7
D. As to the City University Defendants.
63)
As to Defendant Professional Staff Congress/Cuny.
eee
Rec. ON Ap., P. 688 |
-ijil-
Page
POINT I
DID THE SUPREME COURT ABUSE
ITS DISCRETION IN DISMISSING
ee ee ee ea a a Le Be ml ed od 42
POINT II
NONE OF PLAINTIFF'S CAUSES
co. eee oes eee PAs lll lk lk ll lk lt tl hl lt 43
A. As to Employment Discrimination ....... 43
B. As to Article 78 and Four-Month Time
DE OS ON a 45
C. Fraud and the Statute of Limitations. .... 47
CONCLUSIONS
-iii-
REC. ON Ap., P. 689
TABLE OF AUTHORITIES
CASES:
Conner v. Bryce, Sup., 170 N.Y.S. 94 (1918).
Easley v. N.Y.S. Thruway Authority, 1 N.Y.2d 374,
153 N.Y.S.2d 28 (1956) ae e & ‘
Erbe v. Lincoln Rochester Trust Co., 13 A.D.2d 21l,
214 N.Y.S.2d 849, app. dsmd. 11 N.Y.2d 754,
226 N.Y.S.2d 692, 181 N.E.2d 629 (1961).
General Stencils, Inc. v. Chiappa, 18 N.Y.2d 125,
272 N.Y.S.2d 337, 219 N.E.2da 169 (1966).
Greenberg v. Schwartz, 73 N.Y.S.2d 458 (1947).
Melanie v. Board of Higher Education of the City of
New York, 561 F.Supp. 768 (1983)
Mendoza v. State Division of Human Rights,
“) 74 A.D.2d 508, 424 N.Y.S.2d 447 (1980)
Pauk v. Board of Trustees of City University of
New York, 654 F.2d 856 (2d Cir. 1981).
388 N.Y.S.2d 469
Phelan v. City of Buffalo, 54 A.D.2d 262,
Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259,
37/7 M.B.24 713 41978). > ws eek Ss
Troup v. McCart, 238 F.2d 289 (5th Cir. 1956).
STATUTES:
CPLR §C201:6.
CPLR §213
CPLR §214, 214(2)
CPLR §218
CPLR §297, Exec.LawArt. 15.
CPLR Article 78, §7806.
47
34
a ——————_— -
Rec. ON Ap., Pp. 690
hy
nist
dmi
iss
Ac
Rec. ON ApP., P. 4
-Yo
PARTIES AND ATTORNEYS
S.Ct., Kings Co.
CLISSURAS v. CITY OF NEW YORK, ect al. Index No. 20522/85
PARTIES AND ATTORNEYS:
ALICE CLISSURAS, Plaintiff, pro se
215 Adams Street
Brooklyn, NY 11201
(718) 875-6171
CITY OF NEW 1ORK )
TEACHERS RETIREMENT SYSTEM OF NYC ) “CITY DEFENDANTS”
TEACHERS RETIREMENT BOARD OF NYC )
Frederick A. O. Schwarz, Jr., Esq.
Corporation Counsel of the City of New York
Attorney for City Defendants
File No. 85CL0O0642
Suzanne Lank, Asst. Corp. Counsel (State Court)
Norma Kerlin, Asst. Corp. Counsel (Federal Court)
100 Church Street,
New York, NY 10007
(212) 566-6458
BOARD OF HIGHER EDUCATION OF NYC )
CITY UNIVERSITY OF NEW YORK ) “CUNY DEFENDANTS”
NEW YORK CITY TECHNICAL COLLEGE )
Department of Insurance of NYS “Insurance Departr
Robert Abrams, Esq.
Attorney General of the State of New York
Attorney for CUNY Defendants and Insurance Departme:
Sue Barnett Bohringer
Assistant Attorney General
Two World Trade Center
New York, NY 10047
(212) 488-5744
PROFESSIONAL STAFF CONGRESS/CUNY "Union"
D. Nicholas Russo, Esq.
Director of Legal Affairs
Attorney for Defendant PSC
25 West 43d Street
New York, NY 10036
(212) 354-1252
LEWIS ROSENBERG “Union Attorney”
Bergadano, Zichello & Babchik, Esqs.
Attorneys for Defendant Lewis Rosenberg
Ann McIntyre
420 Lexington Avenue
New York, NY 10170 ~
(212) 972-5560
Rec. ON Ap., P. 692
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND DEPARTMENT
ALICE CLISSURAS, :
Plaintiff-Appellant,
-against- :
CITY OF NEW YORK, TEACHERS' RETIREMENT :
BOARD OF THE CITY OF NEW YORK, TEACHERS'
RETIREMENT SYSTEM OF THE CITY OF NEW YORK,
BOARD OF HIGHER EDUCATION OF THE CITY OF
NEW YORK, CITY UNIVERSITY OF NEW YORK, :
NEW YORK CITY TECHNICAL COLLEGE,
PROFESSIONAL STAFF CONGRESS/CUNY, :
DEPARTMENT OF INSURANCE OF THE STATE OF
NEW YORK, and LEWIS ROSENBERG, :
Defendants-Appellees.
STATEMENT PURSUANT TO RULE 5531
l. The index number in the Court below is 20522/85.
2. The full names of the original parties are as
above and there has been no change.
3. This action was commenced in the Supreme Court
of the State of New York, County of Kings.
4. The action was commenced by service of the summons
and complaint on August 27, 1985, August 28, 1985, and
September 3, 1985, for the nine defendants. Four of the nine
defendants were re-served with an alias summons and complaint
on October 29, 1985, October 30, 1985, and November 1, 1985.
Two of the four defendants who were re-served were again
vy
co
.
La
; ‘
ua
7
<j : ‘ .
-
_
'
’ ‘
: : > :
>
. "
.
; ‘* ‘ .
c7
refe
stat
os. REC. ON AP., P. 697 ©
Retirement System informed plaintiff in January, 1983, that
pension plan which applied to her was in the Administrative
of the City of New York, Chapter B20. To support the
rence to B20, the versions of the calculation were in the
lance of the plan in B20, §41.2. However, due to mis
ements and misrepresentations included in the versions, the
amount of the pension benefit is an amount for 29 years of ser-
LTE 63
y aht
~ it
1OnNn.
d plaintiff to expend an inordinate length of time re
thing the complex Code since not one of the defendants would
sr any questions about B20 and not one of the more than 30
ind not 34 years. What plaintiff did not know until
), 1985, was that her pension had been calculated accord-
ite Pension Laws at the rate of 2-1/2% for 29
c. Cirael t rat inder State Law for those with service
th 30 years of service and over, a
ipplied. Thus, not only was
her service years in the calcula
t , but she was also deprived of the 30-year
ment allowance. By all of which, plaintiff has been
1 of upwards of $10,000 annually in the amount of her
Misleading plaintiff as to the applicability of B20
neys with whom plaintiff consulted would-give her any
ion about B20 or her pension benefits or her legal
As to the calculation of the pension, the facts show
ill of the defendants discriminated against plaintif! j
~ Rec. ON Ap., P. 698
fraudulently conspired to conceal plaintiff's benefits to
deprive her of her maximum and correct pension, as follows:
l. Each of the defendant Retirement System's three
versions did not use a 30-year retirement allowance calcula-
tion (pp. 346, 348, and 349). Each made reference to out-
side service which is contradicted by the Retirement System's
own certification of plaintiff's service as 34 years of New
York City service (p. 347). In the letter from Mr. Jonathan
Schwartz (p. 348), the additional errors include use of
Increased-Take-Home-Pay accumulation after 25 years instead
of the entire amount as required by Law and as used on the
Report of Actuary (p. 346) and not allowing any addition to
the pension for the amount of money in the Annuity Savings
Fund which is depicted as-a deficit when in fact it had a
balance which is shown in the other two versions (pp. 346 and
349). In Mr. Wallace Sullivan's version (p. 349), the addi-
tional errors include Increased-Take-Home-Pay accumulation
after 25 years instead of the entire amount and a minimum
accumulation amount for individuals with less than 20 years of
service. To date, the Defendant Retirement System has not
stated what the pension plan is. It has not made any respons
to the above claims; it has not explained the differences in
the three versions supplied above. The Pension System is
allowed by the Court to ignore the calculation of the pension
which is a fraudulent and discriminatory calculation, as the
affidavits and memoranda of the Pension System show.
2. Plaintiff presented her pension questions to
defendant Teachers' Retirement Board of the City of New York
("Retirement Board") and requested a hearing, to which pre-
sentation (pp. 220-265) and request for hearing the Retirement
Board never responded.
3. As directed by the Pension System, plaintiff went
to her Union for pension information prior to retirement.
defendant Union's pension officer gave plaintiff a worksheet
\ Rec. ON Ap., P. 699
estimating the amount of the pension which was in the
semblance of Code B20 and which concealed the correct re-
tirement allowance for persons with more than 30 years of
service (p. 608). In subsequent meetings and correspond-
ence with the pension officer and Union, the correct pension
allowance was never revealed to plaintiff. Not only did
the pension officer conceal the 30-year allowance, she did ‘
not inform plaintiff that there is a 35-year plan. As a
pension officer who is providing information to a Union
member who has 34 years of City service and one year of
private school service, not informing her of a 30- and 35-
year plan is concealment of material fact. The Union pro-
vided the first discriminatory and fraudulent version of
the pension. The pension officer used an improper form to
make it appear that all Union members are counseled in the
same manner, which plaintiff discovered well after retire-
ment was far from the truth. The Union has not responded
6 eet Ree abr edna eee oe
to plaintiff's claims. The Union does not distribute
pension information widely to Union members; it counsels
2 \<eee
members of a large group of teachers individually which
results in the most invidious form of discrimination. The
Union is allowed by the Court to ignore the calculation of
Ne net a ed le
the pension which is a fraudulent and discriminatory calcu-
lation, as the affidavits and memoranda of the Union show.
4. Plaintiff requested information from the pension
officer of defendant City University. He refused to meet
with plaintiff until after retirement; at that point he
sent her a version of the pension calculation which was in
the semblance of Code B20 (pp. 547-548) and included errors
as to plaintiff's service and loan despite the fact that he
had examined the Pension System's certification of plain- |
>
tiff's time as 34 years of City service and despite the fact!
that he had examined plaintiff's most recent Statement of
Accounts which showed the amount in her Annuity Savings
Fund, an amount which could not have resulted in a deficit.
Rec. ON Ap., P. 700
City University's pension officer concealed the correct
pension allowance from plaintiff in conspiracy with the
other defendants.
5. Plaintiff met with the pension officer at the
College who did not give her any information as to the pen-
sion other than to say that plaintiff has 34 years of ser-
vice. As to the defendant College, concealment was total.
The College blocked plaintiff from acquiring any informati
which might have assisted plaintiff even to the point of
providing the name of an earlier pension system of which
plaintiff had been a member. The College discriminated
against plaintiff as to all the claims herein and conspired
to fraudulently deprive plaintiff of her correct payroll,
employment, and retirement benefits. Additional depriva-
tions are detailed below.
6. Plaintiff met with defendant Lewis Rosenberg
("Union attorney"), who was retained by the Union to repre-
sent plaintiff with respect to the pension issues (pp. 467-
468). The Union Attorney, after viewing plaintiff's papers,
did not inform plaintiff as to the nature of her case, her
pension benefits, or her rights. The Union Attorney and
his associate differed as tc the applicable Statute of
Limitations, the former viewing it as a 4-month limitation
and the latter as a 3-year limitation. After the first
visit on February 15, 1983, plaintiff was not contacted by
the Union Attorney until April 5, 1983, when he unilaterally
disengaged himself from the case by letter (p. 469), with
no clarification as to the Statute of Limitations and no
information as to plaintiff's case or rights. Not only did
the Union Attorney conceal the correct pension information
from plaintiff, he also did not safeguard plaintiff as to
the Statute of Limitations. The Union Attorney joined the
conspiracy to deprive plaintiff of her correct pension
benefits.
7. Since the Department of Insurance of the State of
New York ("Insurance Department") is the overseer of the
Rec. ON Ap., P. 701
mY
Pension System, plaintiff sent a presentation of her
questions to the Insurance Department (pp. 342-371). It
never responded to her presentation. The defendant
Insurance Department fraudulently concealed the pension
benefits to which plaintiff is entitled. The discrimina-
ory and fraudulent acts of the Insurance Department date
5, 1984, when plaintiff presented her claims, to
, 1985, and forward, when the Insurance Department in
its last letter to plaintiff (p. 405) continued its fraudu-
minatory statements that everything had
correctly according to law and all errors had
been corrected. Nowhere has the Insurance Department shown
how it arrived at the conclusion that everything had been
done correctly and all errors had been corrected. A simple
reference to the dates of letters in which the Insurance
Department found the correct pension amount and correction
of all errors would have sufficed. Instead, the Insurance
Department ignores the pension amount, does not respond to
any questions, and shows no evidence leading to its con-
clusions. (See complete file of letters as to Insurance
Department, pp. 342-407 of the Record on Appeal.) The
Attorney for the Insurance D2partment uses some of these
letters to support her statements and arguments in her
Affidavit and Memorandum in Support of Motion to Dismiss the
Complaint (pp. 310-321). However, in using the letters,
the Attorney for the Insurance Department completely elimin-
ates all the documentation plaintiff enclosed with each
which essentially resulted in using letters of
transmittal and eliminating all the proof. The letter which
she uses as her "Exhibit G," (pp. 318-320) for example,
indicates at the end that there were 7 enclosures which did
not appear in Exhibit G. Thus, the Attorney eliminated
plaintiff's documentation of pension and service fraud.
(See plaintiff's "Exhibit K" in opposition, pp. 394-404 of
the Record on Appeal.) As to the final letter from the
ee ee ee
z Rec. On Ap., Pp. 702
nk On
Insurance Department, dated June 7, 1985 (Plaintiff's
Exhibit L, p. 405), the Attorney for the Insurance Depart-
ment uses the same letter in her Exhibit H (p. 321) with
the exception that the date was altered to March 27, 1985.
The Insurance Department avoids plaintiff's claims by
ignoring the documentation and making generalizations to
the effect that everything has been done correctly without
documenting the generalization. The Court below allowed
this as it was allowed for the other defendants.
The above actions of the defendants as to the calcula-
tion of the pension are discriminatory as to plaintiff on the
basis of her sex and religion since the only teachers who, to
plaintiff's knowledge, are receiving the 30-year retirement
allowance are male and/or non-Christian teachers. All of the
defendants concealed and continue to conceal the correct amount
of the pension as all of their motion for dismissal papers
Clearly show. All of the defendants, who are in a fiduciary
relationship with plaintiff and who are pension experts, con-
Spired to deprive plaintiff of the correct amount of her pension.
Total concealment of the pension facts by fiduciaries and experts
could only have occurred as part of a conspiracy.
B. AS TO CREDIT FOR PRIOR SERVICE (SECOND AREA OF CAUSES OF ACTION )
The fraudulent calculation of the pension for 29 years
instead of for 34 years is one of four major areas of causes of
action. The second one is the fraudulent method by which plain-
tiff's prior service was charged and credited. The Pension
System required plaintiff to pay approximately $3,500 to regain
credit for her first five years at the College since she had
Rec. ON Ap., P. 703
alas
withdrawn her contributions from the New York State Public
Pension Systems of which the faculty were members during the
years 1948-1953. Of that amount, $2,500 was not placed in
plaintiff's Annuity Savings Fund and as described above in A,
five years of service were not included in the pension calcula-
tion despite the payment for that service. This cause of action
followed essentially the same route as the first one detailed
above for the calculation of the pension.
Under New York State Law, plaintiff should have been
given automatic credit for her prior service since it was ser-
vice in employment during which she became a member of the
Retirement System. The Law, as it appears on the forms of the
Retirement System (p. 400), provides, as follows:
"PRIOR SERVICE:
When you have rendered the equivalent of at least
five full years of service after July 1, 1976 or
after last joining, you are entitled to credit for
previous service if retirement credit has previously
been granted for such service in any public retire-
ment system in New York. In order for such prior
service to be credited, you must properly fill out
page three of this application.
"You are entitled to immediate credit for prior
service as follows:
(a) Service that is otherwise creditable, which
was rendered while you were ineligible for
membership in a public retirement system or,
(b) If it was rendered during which employment
you became a member of this System.
(c) Service credit that was transferred from any
public retirement system in New York City or
New York State."
The prior-service rules were concealed by each and every defend-
ant to whom plaintiff had shown certification of her service by
the Retirement System and her Statement of Accounts and this
Rec. ON Ap.. Pp. 704
s¥%q
included defendants Retirement System, Retirement Board, City
University, Union, Insurance Department, and Union Attorney.
After retirement, plaintiff discovered that male colleagues had
been credited automaticaliy for service at the College for years
when they had not made any contributions to a retirement system.
The College not only concealed the rules from plaintiff, it also
misstated them, fraudulentiy, to prevent plaintiff from acquiring
the credit to which she was entitled automatically. The Collea
also fraudulently misstated the rules which prevented plaintiff
from purchasing one year of private school teaching (pp. 359-
369).
This second area of causes of action is replete with
misinformation given to plaintiff by the College and given by the
College to the Retirement System, among others. Since the items
are too numerous to fuliy describe herein, plaintiff sets forth
the following example: The Retirement System improperly stated
that the plaintiff did not hold membership in any retirement
system during the period 1951-1953 (p. 368). Not only was this
not true, since plaintiff was a member of a retirement system
all of her 34 years; but also, the break in membership should
have affected credit for prior service even if it were true
according to the rules for prior service which are imprinted on
the forms of the Retirement System. Plaintiff provided proof
her continuous membership (p. 374), which required years of
searching due to:‘the obstructive tactics of defendants and which
the defendants and the Courts below ignored. Obviously, the
College had not submitted correct information to the Pension
REC. ON AP., P. 705)
my
System; and the Pension System, on the other hand, was remiss in
not searching for this information at the point of plaintiff's
entry into membership.
As to this second area of causes of action, the improper
charging and crediting of plaintiff's prior service, the defend-
ants do not respond to any of the above claims as all of their
motion papers clearly show. The defendants do not respond to
any of plaintiff's claims of discrimination, conspiracy, fraud,
and breach as to this nateise. Plaintiff was discriminated
against on the basis of sex since male colleagues had their ser-
vice credited automatically; the defendants conspiratcrially con-|
cealed the rules for crediting prior service with not one defend-
ant informing plaintiff of the rules; the service was charged and
credited fraudulently; and defendants breached their contractual
and/or fiduciary duties to plaintiff.
Ge AS TO MAINTENANCE OF STATEMENTS OF ACCOUNTS (THIRD AREA OF
CAUSES OF ACTION)
The facts herein contribute to a third area of causes
of action, the improper maintenance of plaintiff's Statements of
Accounts, which includes many uncorrected errors, many omissions,
use of two membership numbers, not putting plaintiff's account in
computer, and Retirement System's refusal to give plaintiff a
copy of her records. Again, since the errors and omissions are
too numerous to itemize and detail herein, plaintiff sets forth
the following example: On her 1970 Statement of Accounts which
was sent to plaintiff for the first time in 1983, $14,985.64 is
REC. ON Ap., Pp. 706
-15-
posted as the amount of funds transferred from New York City
Employees’ Retirement System; the amount should be $15,675.66 as
shown on the records of the two Retirement Systems (pp. 416-
417). On the same Statement, the value of the Tax Deferred
Annuity credits equals $6,037.38. At the bottom of the form,
under Gross T.D.A., it is listed as $5,740.40. Although errors
in the Statements of Accounts have been brought to the attention
of most of the defendants, such as the omission on the 1981
Statement of the $2,500 purchase-of-service money, this cause ot
action is ignored. No defense is made. No one shows where the
corrections were made. This cause of action is simply ignored
by the defendants and the Courts below. Yet, plaintiff's State-
ments of Accounts are incomprehensible and replete with errors
(pp. 350-358).
This third area of causes of action illustrates defini-
tively the absence of defense and the weakness of the position of
defendants. The defendants do not controvert any thing specifi-
cally. They do not show that what plaintiff is claiming is not
true. They show no signs of having investigated any thing.
Their only response is to make concluding remarks to the effect
that everything has been done correctly and all corrections have
been made without even an indication of to what they refer. On
March 27, 1985, the Retirement System concluded that everything
had been answered and everything had been done correctly (p. 274).
On January 19, 1984, plaintiff sent a letter to the Executive
Director of the Pension System in which she identified 25 ques
tions which had not been completely answered (pp. 266-270).
Rec.
; —
on Ap.. Pp. 707)
The Execut tor ! ied } 2 letter dated May , 1984,
in which he tated that the first five yuestions which had t
io with the De} 2 i1iati f ” i1ld be Inswereqd if | eparate
communicat Be Mr. nathan Schwartz, Chief Actuary (p. 274
Those five questi ve t been answered t late. ret, tne
be
.
defendants continue to state that everything has been answere
-
The defendants use the ime approach to all the causes f actior
They simply iy that everything has been calculated correctly,
with no pr f, and they arse illowed to hide behind ich false
statements.
' om ON . - -areart —
D. fo LO ¥ i i | a | ’
+ > y ’ ¥ >} > + »* " -c +
é é piracy e part of all defendants
. ~ } + ‘ + + s es , >} ~
conceal t } : 2 ion, plaintiff discovered é 1use
erucial | f which wa 11 yvered July 1/, i985, as follows:
, After retirement, plaintiff discoveréd in con-
versing with a colleague tha he had been advised by the
Retire nt ystem t withdraw his application for retirs
ment which he had filed after 29 year 9f service and con
tinue t work until he had mpleted 3 years f ervics
in order tft idd a ipstantial amount ¢t nis pension bens
Eat I rtue f the ear retirement ililowance. rh
was the Tirst time piaintift nad nearad I ict il Low CG.
Then, Eise eart i f additiona insta r ti
and tli ed plaintiff t the di very that there i :
30-year retirement allowance which had beer ncealed by
all defendants and that she had been discriminated against
on the basi f her sex and religion since the teachers
she knew who were receiving the 30-year benefit were mal«
and/or non-Christians.
ee
REC. On Ap., Pp. 70
-18-
E. AS TO LEGAL REPRESENTATION
After retirement, plaintiff expended much time and
energy in trying to get answers to her pension questions. When
the Union Attorney unilaterally ended his representation of
piaintiff, she began seeking another attorney. She consulted
with over 30 attorneys, none of whom would represent her. She
sought a referral from the President of the Bar Association who
referred her to a Surrogate work attorney. Since he lacked the
needed expertise, he would not even discuss the case with plain-
tiff. Plaintiff expended a considerable length of time con-
Sulting with attorneys who not only would not give her any
information but in many instances misinformed her. In refusing
to represent plaintiff, the attorneys whom plaintiff consulted,
in effect, make the determination as to whether or not plaintiff
will have her Constitutional right to a trial by jury of her
causes. They also contribute materially to the passage of time.
Thus, plaintiff realized that she would have to acguire some
legal knowledge in order to be able to deal with the pension pro
blems; she, therefore, enrolled in Law School. The necessity of
law scnool obviously had an effect on the Start of legal action.
However, plaintiff started this action in August, 1985, in defer-|
ence to concern over applicable 3-year limitations, among other
concerns. Throughout, plaintiff continued to seek representatior
by an attorney, to no avail. The facts which emerge from consul
tation with over 30 attorneys and the failure to have such repre-
sentation point clearly to a conspiracy to prevent such
representation.
meee
-19- REC. ON Ap., p. 710
AS TO GOVERNMENTAL AGENCIES
Plaintiff attempted to resolve the problems by pre
senting the questions to all levels of boards, commissions,
and/or agencies, none of which responded and/or showed any
evidence of investigation, as follows:
il. Plaintiff presented questions to the Retirement
Board at its October, L983, meeting. The Board neve:
responded although the Chairman indicated that a response
would be forthcoming after a review of the matter. The
Comptroller of the City of New York sits on the Retire-
ment Board as a member thereof. His deputy received the
hand-delivered presentation for him. The Comptroller
never responded to the issues herein.
2. Plaintiff presented the questions to the
Insurance Department as indicated above on pages 9-1]
and it never responded.
3. Plaintiff filed with the Equal Employment
Commission on June 20, 1985, after earlier attempts to
file had been blocked. The EEOC has not shown signs of
any investigation or of even contacting the respondents.
4. The EEOC claims were filed with the New York
State Division of Human Rights early in July, 1985. The
State Division has shown no Signs of contacting all of
the respondents and no signs of any investigation. Prior
to July,1985, the State Division had blocked all of
plaintiff's efforts to file with it.
De In addition to the 9 defendants herein, Robert
Abrams, Esq., Attorney General of the State of New York,
was served with the summons and complaint, in August, 1985.
Then, his office assumed the representation of four of the
defendants herein, on behalf of whom two motions to dismiss
the complaint were made (pp. 301-331, 491-530). There is
no evidence of investigation of plaintiff's claims of dis
crimination, conspiracy, fraud, and breach.
6.
Frederick A.
defendants h
vert the validity of the claims,
City admits
in effect,
breach,
~~ we
Oo, Schward, Jf.
erein.
the claims
admission of discrimination,
as true for the
REC. ON AP., P. 7111
The Corporation Counsel of the City of New York,
, Esq., 1S representing three
His office not only does not contro-
but the attorney for the
motion which is,
conspiracy, fraud,
and gross negligence.
DEPRIVATION OF RIGHTS (FOURTH AREA OF CAUSES OF ACTION)
Finally, the facts herein constitute a fourth area of
=s of action; namely, deprivation of rights, as follows:
l. To date, plaintiff has been denied her Consti-
tutional due process rights. There has been no hearing
of the claims herein. None of the boards, agencies, or
commissions to which plaintiff applied in her attempts to
resolve the pension issues would grant her a hearing. They
tried to block her from filing in some instances; they did
not assign a file number in some instances; and none of
them investigated or held a hearing of the claims herein.
2. To date, plaintirf has not received an accounting
of her pension moneys.
a To date, not one defendant has stated what the
pension plan is which applies to plaintiff and what the
rules for crediting prior service are.
4. To date, plaintiff has not received a copy of
her records
and despite
Da ro
payroll and
requests and
from the
the inclusion
date, plaintiff
service records
despite the
Pension System,
of
fac
despite many requests
those records.
of
many errors in
has not received a copy her
from the College, despite many
t that they have been the sour?
of much of the misinformation which has been supplied to th:
Pension Syst
example,
assistant pr
em. In a
ofessor five
letter to the Retirement System,
years
for
the College certified plaintiff's promotion to
later than it actually took
moneys are involved, plaintiff's moneys are not part of
REC. ON AP., Pp. 712
se
place (p. 550). Plaintiff was promoted to assistant pro-
fessor in 1954 and not 1959 as shown. This appears to be
another item in the conspiracy to deprive plaintiff of her
34 years of benefits and another item of evidence to show
that records which plaintiff is not allowed to see are the
source of material errors.
6. Plaintiff has been blocked from retaining proper
legal representation.
7. Plaintiff has been deprived of her right to fair
and equitable treatment by all of the defendants herein
and instead plaintiff has been discriminated against due
to her sex and religion.
8. Plaintiff has been deprived of equal protection
of laws by the defendants, attorneys, agencies, and the
Court.
9. Plaintiff has been subjected to abuses of her
person, time, and property. A bit of information which
Should have taken an instant on the part of the defendants
to give required years of searching on the part of the
plaintiff. To prevent plaintiff from acquiring any pensi
information, the Union went so far as to dismantle its
library.
lO. Plaintiff has been audited by the Internal Revenue
Service over 12 times since 1968, the year of entry in the
Retirement System.
ll. Plaintiff is not in computer at Social Security
and has had years of zero contributions for years during
which she made maximum contributions.
12. Plaintiff rolled over Tax Deferred money fron
the Retirement System to a bank; the bank did not place
this amount in computer and plaintiff had difficulty
obtaining a statement for this money.
As shown by the above, whenever plaintiff's employme
record and many errors follow and go uncorrected.
REC. ON AP., P. 713}
>,
The causes of action are numerous. Plaintiff attempted
to detail them as fully as possible in her Complaint. She pro-
vided documentation of the claims as Exhibits attached to her
papers in opposition to the motions to dismiss.
The defendants do not defend or argue against the
causes of action. They do not state that plaintiff's pension is
correct; they do not state what the pension plan is. They do not
state that plaintiff's prior service was credited properly; they
do not state the rules for crediting prior service. They are
not not
required
required to
to give plaintiff copy of her records.
produce records or
documentation or proofs.
They are
They
rely, in the main, on a short, inapplicable statute of limita-
tions, as to which they do not state with certainty the wrong
and the date relevant thereto. The defendants acted-in concert
to attempt to allow the statute of limitations to expire by
maintaining the fraudulent position that everything had been
calculated correctly, by concealing the causes of action, by
blocking the from the acquisition of pension and legal
7
plaintiff
informacion, andby attempting to prevent her from taking legal
action.
H. THE PROCEEDINGS BELOW
The nine defendants represented by four attorneys
brought motions to dismiss the complaint as against all of the
defendants, follows:
as
1. The motions to dismiss of the City Defendants
(pp. 148-275) and the
331)
Insurance Department Defendant (pp. 301
heard
),
were in Kings County,
13,
Special Term, Part I
(Shaw, Jr. on November 1985.
Ss Rec. ON Ap., Pp. 714
2. The motion to dismiss of the Defendant Attorney
Rosenberg (pp. 439-454) was heard in Kings County, Special
Term, Part I (Bernstein), on December 16, 1985.
3. The motions to dismiss of the City University
Defendants (pp. 491-530) and the Defendant Union (pp. 571-
597) were heard in Kings County, Special Term, Part I
(Hurowitz), on December 20, 1985.
No record was made of the November 13, 1985, hearing.
Kings County is a court of record and the proceedings should
have been recorded; however, plaintiff was not even given a
choice of having a recorder present. Further, the records of the
Chief Court Reporter show that a reporter was present in Special
Term on November 13, 1985. The Special Term Clerk's office
would not give plaintiff any information on the settlement of
the order; thus, plaintiff was blocked from the settlement. The
Court (Shaw, Jr.) signed a memorandum decision (p. 12) anda
judgment (pp. 9-11) dismissing the complaint, both of which deci
sions do not state the nature of plaintiff's action and the
causes of action and both of which decisions do not state which
claims are subject to a four-month statute of limitations and
why a four-month statute is applicable. The memorandum decision
Simply states:
“Plaintiff's law suits * * * are subject to a
four month Statute of Limitations." (p. 12, second 9)
The judgment simply states:
“ADJUDGED that plaintiff's causes of action against
the City defendants and the Insurance Department are
barred by the four-month statute of limitations; * * *"
(p. ll, last q)
Do the above two statements mean that plaintiff's claims of
employment discrimination, civil rights violations, concealment
_24- Rec. ON AP., P. 7158
of causes of action, fraud, breach, and gross negligence are
barred by a four-month limitation? None of the causes of action
is time barred and none is subject to a four-month statute.
No record was made of the December 16, i985, hearing
and again plaintiff was not given a choice and again the records
of the Chief Court Reporter show that a reporter was present in
Special Term on December 16, 1985. Plaintiff received a pro-
posed order from the Attorney for Defendant Rosenberg against
whom the Court (Bernstein) dismissed the complaint, for settle-
ment on February 14, 1986; however, Special Term disclaimed
receipt of such order. The Court signed a memorandum decision
which was filed January 2, 1986; again plaintiff was prevented
from an input in settlement. The memorandum decision states that
the causes of action are concealment, conspiracy, and breach of
contract and fiduciary duty; however, it then concludes:
"Obviously, the plaintiff is asserting those
causes of action in this very action presently
pending and, therefore, has suffered no damages."
Oo. aa
Plaintiff is not certain as to the intent of the above decision.
Defendant Rosenberg breached his contract when he unilaterally
withdrew and breached his fiduciary duty when he concealed all
pension and legal information from plaintiff. He was negligent
in the conduct of plaintiff's case with respect to the lapse of
time and time limitations. He was a part of the conspiracy to
deprive plaintiff of her employment benefits as evidenced by
his acts of concealment. These causes are set forth in plain-
tiff's complaint as are the damages. Thus, plaintiff questions
ri mi aa
Rec. ON AP., P. 716
a
the lack of a Court response to the causes of action and how
it was decided that plaintiff suffered no damages.
A record was made of the December 20, 1985, hearing
(pp. 32-66). Plaintiff received several Notices of Settlement,
one for January 7, 1986, and another for January 29, 1986, and
in each case Special Term disclaimed receipt of the proposed
order. Again, plaintiff was prevented from participating in
settlement. The Court signed an Order (pp. 29-30) on
February 14, 1986, dismissing the complaint against the City
University Defendants and the Defendant Union. The order is
devoid of any statement as to the nature of plaintiff's action
and does not mention one cause of action. In addition, the
Order does not make any statement as to a reason for dismissal.
On the record (pp. 61-65), the Court (Hurowitz) does not refer
to any of plaintiff's causes of action and goes on to conclude
that the motions to dismiss,are granted on the grounds that Judge
Shaw made the decision on the question of law that ‘the four-
month statute applies in this case and that the Court in this
case could not go against Judge Shaw's decision. Plaintiff
attempted to get a response to fraud and the statute of limita-
tions; however, the Court would not respond to fraud (p. 65).
It appears that this decision of the Court was based on in-
sufficient consideration of the complaint and of all the motion
affidavits and memoranda and exhibits. Since all of these papers
are submitted on the day of the hearing, sufficient consideration
could not be given to them to arrive at a decision at the end of
the hearing.
Rec. ON Ap., P. 717
ate.
All three Court decisions granting the motions to dis-
miss the complaint simply ignore plaintiff's claims of employment
discrimination and violations of her Constitutional and civil
rights. Discrimination against female City University profes-
sional instructional staff members on the basis of sex has been
established by the decision in Melanie v. Board of Higher Educa-
tion of the City of New York, 561 F.Supp. 768 (1983). These
claims are not subject to a four-month time limitation. The
Courts made no decision on conspiracy, concealment, and fraud.
They ignore these claims, which are documented by plaintiff, as
the defendants ignored them. These claims are also not subject
to a four-month time limitation. All three Court decisions did
not show how the complaint failed to state claims which establis!
causes of action. The Courts did not consider that the defend-
ants did not refute any of plaintiff's pension facts and that
they did not present any documentation disputing said facts.
Ali three Courts improperly dismissed issues of fact without any
semblance of due process. Plaintiff's claims of documented frau
were dismissed and the issue of equitable tolling due to fraud
was dismissed. All the issues of fact herein were dismissed
improperly on a motion to dismiss.
The Courts dismissed plaintiff's 33-page complaint wit
the quick statement and no opinion that plaintiff's “law suits"
are subject to a four-month Statute of Limitations and that
plaintiff's causes of action are barred by the four-month
statute of limitations. The Courts show no evidence of consider
ing the timely discriminatory and fraudulent acts which are not
wate REC. ON Ap., p. 7
time barred and which continue, as follows:
(1) The final discriminatory and fraudulent decision
of the Retirement System that everything had been calculated
correctly as set forth in its letter of March 27, 1985
(p. 274);
(2) The final discriminatory and fraudulent decision
of the Department of Insurance that everything had been
calculated correctly as set forth in its letter cf June
1985 (p. 405);
(3) The discriminatory and fraudulent certification
by City University of New York of plaintiff's service as 29
years instead of 34 years as set forth in its communication
of July 17, 1985 (p. 570);
(4) The continuing discriminatory and fraudulent
amount of plaintiff's pension;
(S) The discriminatory policy of the defendants as
to which male and/or non-Christian teachers, who are simil
ly situated as to plaintiff, continue to be granted
retirement allowances;
(6) The tolling of all time limitations due t the
fraudulent use of 29 years for plaintiff's 34 years
the fraudulent requirement that plaintiff's College servi
be purchased as “outside service"; and
(7) The extraordinary steps taken by defendants t
prevent discovery of the causes of action herein which
elongated the time as to each phase and proceeding herein.
Plaintiff filed with the EEOC on June 20, 1985, whi
was timely in view of the discriminatory acts outlined above.
18
Rec. ON Ap., Pp. 719
=28-
Further, plaintiff served the summons and complaint in this
action on August 27, 1985, which was timely as to each of the
discriminatory and fraudulent acts committed herein, seven of
which are outlined above on page 27 herein.
ARGUMENT
PRELIMINARY STATEMENT
The Complaint sets forth causes of action for employ-
ment discrimination as a result of which plaintiff was deprived
of pension benefits which male and/or non-Christian teachers
received and which discriminatory policy continues to date; the
aint sets forth causes of action for conspiracy on the part
of all defendants to deprive plaintiff of her benefits by fraudv-
lently concealing the causes of action, which conspiracy con-
tinues to date; the Complaint sets forth causes of action for
t
deprivation of plaintiff's Constitutional due process rights as
evidenced by the total absence of a hearing of the issues herein;
and the Complaint sets forth causes of action for fraud, breach
»9f fiduciary and contractual duties, and grossly negligent acts.
The Courts below, in not responding to all of the above causes,
contribute to them and to the deprivation of plaintiff's rights.
The Courts did not identify the acts by which a four-month time
bar was determined, did not identify the statute of limitations,
and did not deliver opinions, reasons, and grounds for their
decisions. By so doing, the Courts deprive plaintiff of counter-
ing the Courts' positions. -
Rec. On Ap., Pp. 720 |
-29-
COUNTER-STATEMENTS AND ARGUMENTS OF THE CASE
A. As to the City Defendants (City of New York, Retirement
System, and Retirement Board)
The moving papers of the City Defendants are riddled
with errors, misstatements, and omissions. The attorney for
the City Defendants, Frederick A. 0. Schwarz, Jr., Corporation
Counsel of the City of New York, by Norma Kerlin, A.C.C., and
Suzanne Lank, A.C.C., in the moving papers, argues that plain-
tiff's first cause of action is a "failure to counsel" claim
dating back to September 1, 1982 [p. 150, J6(a); p. 157, 4(1)]);
and that the second cause of action is a “failure to credit
claim which goes back even further to 1981. Attorneys Kerlin
and Lank go on to state that the said two claims are two singu-
lar incidents unrelated to any ongoing or recent discrimina-
tory acts by City Defendants and that, therefore, plaintiff can-
not use continuing effects of past discrimination to overcome
the statute of limitations (pp. 157-160, 299). In the com-
plaint, plaintiff summarizes her first two areas of causes of
action as "* * * plaintiff has been deprived of a pension
benefit for 34 years of New York City service and instead has
unlawfully and improperly and discriminatorily been given a
pension benefit based on 29 years of service. * * *" (p. 82,
Q(THIRTY-THIRD) The attorneys for the City Defendants studiously
avoid the fact that plaintiff has 34 years of teaching service
and her pension was calculated for 29 years of service. This
was done so that the 30-year retirement allowance would not be
used, discriminatorily, in the case of plaintiff and her pen-
Sion was thus calculated at 24% per year of 29 years of service.
Rec. On Ap.. P. 721
-~30-
This discriminatory and fraudulent calculation of the pension
was concealed from plaintiff by all of the defendants. The
concealment is evident in the March 27, 1985, letter from
the Executive Director of the Retirement System in which he
states that plaintiff's retirement allowance has been properly
and correctly computed according to applicable laws and that
this letter ended any further response to plaintiff. The con-
cealment is also evident in the moving papers of all of the
defendants. Nowhere do any of the attorneys respond to the
calculation of plaintiff's pension for 29 years instead of for
34 years. Nowhere do any of the attorneys state the rules for
crediting prior service. Again, they studiously avoid the
fact that plaintiff's prior service should have been automati-
cally credited. The rules for prior service were concealed
and continue to be concealed by all of the defendants.
The attorneys for the City Defendants argue that
plaintiff's fraud claim fails due to the fact that plaintiff's
assertion of defendants’ concealment relied on the presupposi-
tion that defendants had a duty to counsel plaintiff (p. 298).
The issue here is that the defendants omitted material informa-
tion and concealed the elements of fraud in the calculation
of the pension and the crediting of prior service. The issue
as to the fraud is not the presupposition of duty to counsel;
it is the concealment of the fraud which was done by all of
the defendants. The concealment continues as is evidenced by
the moving papers of all parties herein. The discrimination
continues as is evidenced by a male, non-Christian teacher who
was to retire in 1985 and instead is now completing his 30th
- 4
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Rec. ON Ap., P. 723
wa
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rom Mr.
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Rec. ON Ap., Pp. 724
of the Defend
]
bene Ss been ca orrectly and that all her ques-
tions had been answered; and on the basis of the January 3l,
1985, letter from Ms. Mary A. Griffin, Executive Assistant t
the Superintendent of Insurance Department, in which she
: : ided ti uestions raised in laintiff's December 12, 1984,
letter t the Superintendent, Mz James P. Cor ran. Th
tw etters graphically illustrate the responses of the defend-
ints in this action The letter f August 29, 1984, makes
attempt t nswer anything specifically. How did Mr. irdine:
onclude that plaintiff's benefits are correct? What did he
review that showed that plaintiff's questions had been answer:
(; 33-384) I his January 19, 1984, letter to plaintiff,
the Executive Director of the Pension System stated that all
laintifft’ er mm questi ive not bee! i wered (ft 114)
Mr. irdiner'’s letter iS a example f the i ure t :
t the : fi laims if l 1 her , } , M
Terence Lennon, Chief of the ife Insurance ireau, a tat }
that all of plaintiff*s questions have been answered and t
utations corrected What did Mr. Lennon review that showed
this When and where were corrections made? These two letter
are examples of the fraudulent concealment of the pension fact
The January 31, 1985, letter of Ms. Griffin illustrates thi
false information disseminated by defendants. (pr 392-393)
Each of Ms. Griffin's answers is false and a ncealment
REC. ON AP., P. 7255
i
~34-
of the pension laws applicable to plaintiff. On January 3l,
1985, the Insurance Department was still saying that plaintiff
was not a member of a pension system for the period 1951-1953
(p. 392, second A.) Plaintiff sent proof of membership to
all and to the Insurance Department on April 30, 1984 (p. 373).
Plaintiff made handwritten notes on Ms. Griffin's letter to
highlight the errors since the response regarding membership
in a pension system in 1951-1953 indicated that no one was re-
viewing the matter. Ms. Griffin's response also indicated that
the prior service automatic crediting as required by Law was
being concealed again. Attorney Bohringer characterizes plain-
tiff's handwritten comments) as "Refusing to accept the Depart-
ment's answers * * *." Attorney Bohringer makes no comment as
to the substance of Ms. Griffin's responses and no comment as
to their accuracy or lack thereof (p. 325).
Further, Attorney Bohringer argues that the Supreme
Court of the State of New York iacks subject matter jurisdictio:
to determine plaintiff's claims (pp. 326-327). Plaintiff argues
that the Supreme Court has subject matter jurisdiction in this
action. As to public agencies, claims against some, but not al!
public authorities must be brought in the Court of Claims. The
question turns on the relationship between the body involved
and the State. Easley v. N.Y.S. Thruway Authority, 1 N.Y.2d 37:
153 N.Y.S.2d 28 (1956). Further, subject matter jurisdiction
often turns on the issues of fact. Troup v. McCart, 238 F.2d
289 (5th Cir. 1956). The issues of fact in the instant action
are within the jurisdiction of the Supreme Court. Also, the
Rec. ON Ap., P. 726
-35-
nine defendants herein are united in interest by virtue of their
conspiracy in this action. The claims are numerous and complex.
To separate the claims against the Insurance Department would
be unjust, wasteful, and a gross disservice to justice, to the
issues, and to the plaintiff. The significance of conspiracy
in New York law is for joining all defendants and holding them
responsible for the acts of each other. Conner v. Bryce, Sup.
170 N.Y.S. 94, 95-96 (1918). Generally, an allegation of frau
or collusion is sufficient for conspiracy.
The above arguments as to the positions of Attorney
Bohringer are not intended as complete arguments of all the
misstatements and concealments in her papers. Alterations
of Exhibits attached to said papers are described above on pp.
10-ll, herein.
C. As to Defendant Rosenberg
The Attorneys for Defendant Rosenberg, Bergadano,
Zichello & Babchik, by Ann McIntyre, Esq., argue that plaintif
failed to state a cause of action against Defendant Rosenberg.
On the contrary, Defendant Rosenberg breached his agreement
with Defendant Union to provide plaintiff with the pension in-
formation she was seeking and to correct errors in her calcul
tions (p. 467). Defendant Rosenberg did neither. He unilater
ally withdrew his representation of plaintiff in an April 5,
1983, letter to plaintiff after seeing her only once on
February 15, 1983. He concealed all pension information from
plaintiff after examining her documentation which included the
Report of Actuary (p. 346), the Retirement System's certifi
,
a
reas REC. ON AP., Pp. 727
of plaintiff's service as 34 years of New York City Service
(p. 347), the February 7, 1983, version of plaintiff's pension
(p. 348), and the last Statement of Accounts received by plain-
tiff to that date (p. 366). He did not give plaintiff a defin-
itive statement regarding the statute of limitations. Thus,
he concealed, from plaintiff, all pension information and her
legal rights. He thereby joined the conspiracy to deprive
plaintiff of her employment benefits, which he accomplished by
concealing that plaintiff's pension and prior service had been
fraudulently calculated. He breached his fiduciary duty to
plaintiff by not revealing material information. He did not
safeguard plaintiff as to equal protection of laws which is a
Constitutional guaranty.
Plaintiff was forced to discover pension information
and her legal rights over a long period of time due to the
obstructive tactics of defendants. After Defendant Rosenberg
disengaged himself on April 5, i983, plaintiff could not retain
an attorney even after consulting over 30 attorneys in her
attempts to do so. The obstructive tactics were many and they
continue to date and they constitute an abuse of plaintiff's
time, person, and property, and a deprivation of plaintiff's
Civil and due process rights.
D. As to the City University Defendants (Board of Higher Educa-
tion of the City of New York, City Univer-
Sity of New York, and New York City Techni-
cal College)
The moving papers of the City University Defendants
are riddled with errors, misstatements, and omissions. In
Rec. ON Ap., P. 728
-37-
her affidavit in opposition to City University Defendants'
motion for dismissal, plaintiff responds to and refutes and
documents as many of the misstatements as possible within the
constraints of such a paper. See pp. 540-542, 479(a) - (1)
of the Record on Appeal. The arguments therein are repeated a
re-attested as though fully set forth herein.
The attorney for the City University Defendants,
Robert Abrams, Attorney General of the State of New York, by
Sue Barnett Bohringer, A.A.G., shows no evidence that his
office investigated plaintiff's claims of fraud; and, in addi-
tion, his office used altered evidence to Support the argument
that plaintiff's questions have been answered (p. 541, qf).
Altered evidence was used by this attorney to support argument
part of Defendant Insurance Department, which defendant
is represented by the same attcrney (pp. 9-11 above).
As to fraud, City University, on July 17, 1985,
certified plaintiff's service at the College as having ended
in 1977 instead of 1982 (5 years difference) (pp. 515-517). Thi
communication from City University was the first time that
plaintiff. discovered that her pension was a 29-year pension and
not a 34-year pension. Defendants’ concealment prevented the
discovery until July 17, 1985. Attorney Bohringer misstates
the contents cf this fraudulent communication and ignores the
fraud. Attorney Bohringer misstates the effects of the Melani
decree and that it bars plaintiff's actions which it clearly
does not (p. 512, QIVC). The Personnel Office of plaintiff's
College sent a letter to the Retirement System in 1968 in which
plaintiff's date of promotion to assistant professor was staté
Rec. ON Ap., P. 729
«38
as five years later than it actually took place. The College
apparently misinformed the Pension System about plaintiff's
membership in a retirement system for the period 1951-1953,
Since the Retirement System shows no membership for that period
(p. 551); plaintiff provided proof of membership (p. 374);
Dean Bronstein of Defendant College provided an altered letter
as to this; and the defendants and the Courts ignore this
fraud. The College and the Retirement System are concealing
all the causes of action tin plaintiff's records by refusing to
give her a copy of them. Clerks at the Retirement System have
informed plaintiff that she has gaps in service which is untrue
but they will not allow plaintiff to see the records which
show this.
The College misstated plaintiff's service throughout
the years which misstatements were not known by plaintiff. The
College prevented plaintiff's purchase of one year of private
hool teaching and this was done discriminatorily and fraudu-
lently. The College has obviously supplied the information to
the Retirement System which fraudulently established plaintiff's
service as 29 years instead of 34 years. This is shown clearly
in City University's 29-year certification of service. The
Attorney for City University Defendants ignores the fraud there1§
(p. 497, 8).
The above arguments as to the positions of the
City University attorneys are not intended as complete argu-
ments of all the misstatements made in their papers. The
conspiracy, concealments, and fraud continue as are evidenced
by the moving papers of said parties.
Rec. ON Ap., P. 730
-39-
E. As to Defendant Professional Staff Congress/CUNY (Union)
In the moving papers, D. Nicholas Russo, Legal
Director and Attorney for Defendant Union, argues that plain-
cists “suapicions regarding her pension allotment" are
unfounded (p. 590) and that plaintiff "maintains in the instant
action (that the Retirement System) miscalculated her pension"
(p. 589). Attorney Russo ascribes the "unfounded" argument to
plaintiff when the situation indicates the reverse. It is
unbelievable that this Attorney, as all the other attorneys
and the Courts herein, can make such statements without even
a hint as to the correct amount of the pension, how it should
have been calculated, the Pension Law which is the source of
the formula, and any proof. The same applies to the crediting
of prior service; not even a hint as to how it should have been
charged and credited, the Pension Law which is the source of
such crediting, and any proof.
Plaintiff does not maintain that her pension was mis-
calculated; plaintiff maintains that it was discriminatorily
and fraudulently calculated. And, plaintiff documents this. Ths
attorney for the Union goes on to say that Ms. Beryl Weinberg.
the Union Pension Officer, provided plaintiff with the same
consultation that she had provided to "other bargaining unit
members" (p. 589). Ms. Weinberg used a form to give the appear-
ance of so doing. However, in reality the form was inapplicable
to plaintiff since it used the B20 percentages and it was obso-
lete. Ms. Weinberg did not follow the formuia thereon for that
reason. Further, it is interesting to note that this was the
first version of her pension that plaintiff received and the
REC. ON Ap., P. 731
-40-
amount of the “normal pension" thereon was calculated as amountin
to 73%, which is the percentage that the Retirement System
awarded as its pension (p. 608). In a Union publication, the
amount of the pension for City University faculty is stated as
2%% for each year of service, which is correct for members with
service under 30 years. Using 25% times plaintiff's 34 years
does not equal the pension amount plaintiff was awarded. In
addition, plaintiff's service was reduced to 29 years to avoid
applying the 30-year retirement allowance. Ms. Weinberg did
not use the correct pension formula for plaintiff and did not
reveal the rules for the crediting of prior service. [In addi-
tion, in her affidavit in support of the motion to dismiss,
Ms. Weinberg states that she did not "discuss the 30-year rule
with her, as I had likewise not discussed with her other
irrelevancies" (p. 582, 910). Does Ms. Weinberg consider using
29 years instead of 34 years for the calculation an irrelevancy:
Does she consider not using the 30-year retirement allowance in
plaintiff's case an irrelevancy? Does she consider not informi
plaintiff, who has 35 years of service with a year of private-
school teaching, that there is a 35-year retirement allowance a
irrelevancy? All of this was discriminatory and fraudulent
the part of the Union.
As to retaining legal counsel, Ms. Weinberg states i
her affidavit that she "sent plaintiff to outside counsel NOT
because I believed she had a meritorious claim but after it -
came obvious to me that plaintiff would never be satisf wi
my answers or those provided by the pension system (x 5981, 48
ail a
REC. ON AP., P. 732
The letter she sent to plaintiff informing her of the attorney
retained by the Union disproves this
(p.
611);
Rosenberg's letter disengaging himself disproves this
Defendant
(p.
Ms. Weinberg informed plaintiff that she would retain an
ney to assist in these matters after viewing the Report of
g i
Actuary,
service,
papers.
The Union has been abusive
went unanswered;
dismantled its library to block plaintiff from gazning any
to plaintiff
sion information and instructed her to go to a
such information.
minatorily
defendants to deprive plaintiff
attorney for the Union, in his
deal with any of the pension fa
statute to bar this action. The
~ +} Ipafoanada - Aine _——o ~
other defendants discriminatori
- _ , c 1
a +r a a — = hoe han a mh,
piaintifl ner benefits. ie’
r e } + bh rn +} a,
actions. 4 L Cuil - sic y 5 de we a
D
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VLONSTICUTIONaAL 1 L225 Case, §
me 4 yy ls - = y ~ nati - na
OL app y . ALSCIdL ific 4 Ana
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attorney ana pensi1o COUNSeCLOL
4 r
mano ~ + 77 Hho ~ - + ™ mec
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ents OL 244 THE isstat
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and fraudulently and in
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I
ann
ranau
and _
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—— ,
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—— ll Se
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All of these actions were
ia
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and plaintiff's 1981 Statement of Accounts,
among otne
she was refused answers to questions;
t
the Pension System's Certification of plaintiff's
613).
lette
he Uni
Der!
library fo
tted discri-
ct
Rec. ON Ap.. P. 733
-42—
POINT I
DID THE SUPREME COURT ABUSE
ITS DISCRETION IN DISMISSING
THE COMPLAINT
The Courts below granted defendants’ motions to dis-
miss without passing upon the sufficiency of any of the causes
of action in plaintiff's complaint. It did not find or hold
that the complaint failed to state a cause of action. The
Courts held that plaintiff's "law suits" or “causes of action"
are barred by "the four-month statute of limitations." As to
these decisions, the causes of action are not even mentioned
and the reason for the applicability of the four-month statute
is never stated.
The detailed presentation of the facts in this case
above in this paper and in plaintiff's papers in response to
the 5 motions for dismissal establishes sets of facts for
employment discrimination, violations of civil rights,
deprivation of Constitutional rights of due process and equal
protection of law, conspiracy, concealment, fraud, breach of
fiduciary and contractual duty, and gross negligence. The
Courts below did not respond to these causes of action as did
not the attorneys for the defendants. The plaintiff documented
these issues of fact and the defendants did not show one shred
of evidence in disputation. The Courts proceeded to dismiss
without giving the complaint and the papers sufficient consi-
deration, without responding to the causes with any specificity,
and without delivering opinions and reasons. The Courts im-
properly dismissed all the issues of fact in this action
Rec. on Ap., Pp. 734
-43-
which facts were not in any manner disproved by the defendants.
The only statement made by the Courts as to a reason
for dismissal is “the four-month statute." No Court below stated
which act constituted accrual of the four months, among the many
acts in the causes herein, and no Court below stated why the
four-month statute barred all the causes herein.
POINT II
NONE OF PLAINTIFF'S CAUSES
OF ACTION IS TIME BARRED
A. As to Employment Discrimination
Plaintiff was discriminated against on the basis of
sex and religion in the deprivation of her employment benefits.
The only persons to plaintiff's knowledge who received the 30-
year retirement allowance and had prior service credited cor-
rectly are similary situated male and/or non-Christian teachers.
The substance of the right to equal protection of laws is that
all persons who are similarly situated be treated alike. In-
vidious discrimination violates the equal protection and due
process clauses of both the Federal and State constitutions.
See Phelan v. City of Buffalo, 54 A.D.2d 262, 388 N.Y¥.S.2d 469
(1976). Plaintiff was discriminated against in the groups of
teachers in which she was similarly situated as to length of
service and prior service credit. The discrimination resulted
in a fraudulently reduced annual pension, the improper charge
for prior service, and the omission of such charged service in
the pension allotment.
Employment discrimination is not subject to a four-
month time limitation. The Courts have consistently applied
three-yeé
by statute
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Rec. On Ap., p. 736
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Oo 3 by Jt fom m4 re el 4 4 4 1 4 4 4 . ‘ T
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4 m4 4 Ly Le) CO rs) f Ly ( c +4 c c f 4 2 VY) 48) ‘
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Rec. On Ap., P. 737
Ww)
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-47- Rec. ON Ap., P. 738
Cs Fraud and the Statute of Limitations
Where the cause of action is conceived in fraud, it is
a continuing wrong not barred by any statute. Greenberg v.
Schwartz, 73 N.Y.S.2d 458 (1947). In Greenberg, the Court held
that defendant's claim that the statute of limitations had run
before the suit was commenced is without merit since the kind of
wrong complained of (one conceived in fraud) is a continuing
wrong and not barred by any statute. Further, a court may estop
a defendant whose misconduct makes it unfair for him to hide be-
hind the statute of limitations as in the situation where defend-
ant conceals the cause cf action from plaintiff. CPLR §201:6
Application of Art. 2: Estoppel to Assert Statute of Limitations.
In the Chiappa "rule," the Court of Appeals held that the theory
in the case of concealment of theft is that a defendant should
not be permitted to take refuge behind the shield of his own
wrong. General Stencils, Inc. v. Chiappa, 18 N.Y.2d 125, 272
N.Y.S.2d 337, 219 N.E.2d 169 (1966). InSimcuski, the Court
held that equitable estoppel is applicable to relieve plaintiff
from the proscriptions of the statute where defendant intention-
ally concealed alleged malpractice from plaintiff and falsely
assured her of effective treatment. Simcuski v. Saeli, 44 N.Y.2d
442, 406 N.Y.S.2d 259, 377 N.E.2d 713 (1978). The estoppel ques-
tion arises also where the defendant is a fiduciary and thus has
a duty to speak. See Erbe v. Lincoln Rochester Trust Co., 13
A.D.2d 211, 214 N.Y¥.S.2d 849, app. dsmd. 11 N.Y.2d 754 (1961).
In the instant case, defendants concealed all the causes
of action, did not respond, would not produce records, continued
,
assertions that everything was correct, and elongated the time
Rec. ON Ap., P. 739
-48-
as to all proceedings herein. The actions of the Courts below
j=)
n allowing the defendants to hide their wrongs using the
statute of limitations as a shield is contrary to all Court
a
jecisions on this, is unjust, and is unconscionable.
Finally, as to the statute of limitations, all of
plaintiff's causes are not time barred. The six-year statute
of limitations for fraud has not expired as to the 1981 and 1982
Pp
a
cts on which defendants rely. Those acts were fraudulently
conceived and are thus subject to the six-year statute; and
his is so even without taking into consideration that plain-
f's discovery of the fraud occurred long after retirement
which would result in equitable tolling of the statute had
slaintiff's claims by any administ rative or governmental agency
here been such need.
CONCLUSIONS
y . ry ) , ‘ Al } c al , c ~l . ‘ a ” " =
The complaint a ‘tails causes of action 1n four mayor
ireas. Due to the number of claims, it 1s impossible to includ
‘rauments as to all within the limits of this paper. Thus, as
he unargued items, plaintiff rests on the complaint and papers
pposition to the motions herein.
No one seems to be concerned that an aggrieved cannot
tain an attorney which situation, 21n effect, deprives the
ggrieved of due process and trial by jury which are inviolate
nstitutional rights. To date, there has been no hearing of
r by any court.
Rec. ON Ap., P. 740
=49-
Tactics are used against a pro se party to prevent
that party from remedying the wrongs. Even procedural informa-
tion is withheld. Papers are not filed. Records are flood
damaged. Altered evidence is used. The defendants and the
Court do not respond to the causes of action.
WHEREFORE, for all of the reasons set forth herein
and in greater detail in the complaint and opposing papers,
this Court should reverse the three Orders of the Supreme Court
of the State of New York, Kings County, dismissing the complaint
and order a trial by jury of the facts in dispute herein as
Constitutionally protected. ,
Dated, September 5, 1986.
Respectfully submitted,
ALICE CLISSURAS, pro se
Plaintiff-Appellant
TO: ATTORNEYS
*
ROBERT ABRAMS, ESQ.
Attorney General of the State of New York
Attorney for City University Defendants~-Appellees and
Insurance Department Defendant-Appellee
FREDERICK A. O. SCHWARZ, JR., ESQ.
Corporation Counsel of the City of New York
Attorney for City Defendants-Appellees
D. NICHOLAS RUSSO, ESQ.
Director of Legal Affairs
Attorney for Defendant-Appellee Professional Staft
Congress/CUNY
BERGADANO, ZICHELLO & BABCHIK, ESQS.
Attorneys for Defendant-Appellee Lewis Rosenberg
Rec. ON Ap., P. /4]
BRIEF OF STATE DEFENDANTS-RESPONDENTS To Be Argued By
(pp. 741-765) ANNE EHRENKRANZ
(S Minutes Requested)
SUPREME COURT OF THE STATE OF NEW. YORK
APPELLATE DIVISION : SECOND DEPARTMENT
Plaintiff-Appellant,
- against -
CITY OF NEW YORK, TEACHERS' RETIREMENT ™
BOARD OF THE CITY OF NEW YORK,
TEACHERS' RETIREMENT SYSTEM OF THE
CITY OF NEW YORK, BOARD OF HIGHER
EDUCATION OF THE CITY OF NEW YORK, CITY
UNIVERSITY OF NEW YORK, NEW YORK CITY
TECHNICAL COLLEGE, PROFESSIONAL STAcF
CONGRESS/CUNY, DEPARTMENT OF INSURANCE
OF THE STATE OF NEW YORK, and LEWIS
ROSENBERG,
Defendants-Respondents.
oem ewe eee ee eeeewe eee e eee eee eweseeccee 4
DEFENDANTS-RESPONDENTS' BRIEF
ROBERT ABRAMS
Attorney General of the
State of New York
Attorney for Defendants-
Respondents Board of Higher
Education of the City of New
York, City University of New
York, New York City Technica:
College and Department of
Insurance of the State
of New York
120 Broadway
ANNE EHRENKRANZ New York, New York 10271
Assistant Attorney Generai (212) 341-2641
of Counsel
Kings County Clerk's Index No. 20522/85
es His An
YUes LCiONnsS
Ae)
OINT II
Coneiusion....
REC. ON Ap., Pp. 742
TABLE OF CONTENTS
Proceedings in Special Term
SPECIAL TEM CORRECTLY RULED THAT
PLAINTIFF'S CLAIMS AGAINST THE
INSURANCE DEPARTMENT AND THE CITY
UNIVERSITY ARE BARRED BY THE
FOUR-MONTH STATUTE OF LIMITATIONS
APPLICABLE TO ARTICLE 78 PROCEEDING
PLAINTIFF HAS NO PRIVATE RIGHT OF
ACTION FOR AN ACCOUNTING AGAINST
THE INSURANCE DEPARTMENT
THE SUPREME COURT LACKS JURISDICTION
TO DETERMINE PLAINTIFF'S CLAIMS
AGAINST THE INSURANCE DEPARTMENT
ee ee ee oe oe a a ee oe ae a 2 ee
a ee ee Na ee ee ee ee ee oe ee a a a a a a
ne he Se eS Ch ee 6 8.6
REC. ON AP.,
D
a
TABLE OF AUTHORITIES
Cases
Page
Hongisto v. Mercure, 72 A.D.2d 850 (3d Dep't
SOTO « <6 050-4. 0:0'44 39 dese e eee a ea 14
in re De Miiio,. SS B.¥. 26 oa fee ieee oy ec eek es ee 9
In re Greenbaum, 48 A.D.2d 969 (3d Dep't 1975)..... 9,10,11
Melani _v. Board of Higher Education, 561 F. Supp.
76E (S.D.N.Y. 1983) 73 Civ. 5434 (LPG)
(May pt S9GG) os eee et eee ee mE a oy tare ae ee a a ee 6
Psaty v. Duryea, 306 N.Y. 413, 417 (1954).......... 14
Shields v. Hofstra University, 77 A.D.2d 867
(24 Dep't 2980) sos ee waa sews sO eee O88 4 8 9,40, 24
Statutes
New York Civil Practice Law and Rules,
Reticle Ti. oo ccc 5 6 ROCESS eT eat asteee
New York Civil Practice Law and Rules § 217........ 7,8
New York Civil Practice Law and Rules § 3016(b).... 12
New York Court of Claims Act § 9.......2..2ceeeeees 14
New York Insurance Law § 201......... 22 eee eee eeeees 14
New York Insurance Law § 326.........+2 eee eee eeeees 11
New York Insurance Law §§ 4601 et seq....----+--+--. Za
New York Insurance Law § 4602(b)......-++--++-eeeee 13
Rec. ON Ap., Pp. 744
Pace
Other Authorities
D. BiGGGL, MOM TOEE PEGCELECH CASTE) ac cece eccccaess :
J. McLaughlin, Practice Commentaries
eS Bs eb 4 re ee a ae ee re =
8 Weinstein, Korn & Miller, New York Civil
PEGGEACO (A9GS) 2c ccc ccc s cer cevereccsansecese 8
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REC.
ON
Ap., P. 745
a
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REC. ON Ap., P. 746
she
In the complaint,
307,
benefits (R.
because of
inst
iminated aga
~_
~
alleged that she had been disc
«
sex and religion by
the City of
of
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niversity o
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Und.
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Rec. ON AP.. p. 747
2. Whether plaintiff has a private right of action
against the Insurance Department?
Special Term did not consider this question although
it was raised walien:
3. Whether the Supreme Court of the State of New York
lacks subject matter jurisdiction to determine plaintiff's claim
for damages against the Insurance Department?
Special Term did not consider this question although
it was raised below.
In late 1985, plaintiff commenced an action against
defendants in the Supreme Court of the State of New York, Kings
County. The defendants are the City of New York, the Teachers’
Retirement Board of the City of .New York (the "Retirement
Boara"), the Teachers’ Retirement System of the City of New York
the “Retirement System"), the City University. the Professional
Staff Congress/CUNY (the "Union"), the Insurance Department, and
Lewis Rosenberg ("Rosenberg"), an attorney retained by the Union
to represent plaintiff (R. 69-71, 99 2-7; R- 94, I 44 (B)).- The
complaint seeks an accounting, compensatory damages in the
Rec. ON Ap., P. 148
amount of $500,000 and punitive damages in the amount of
$2,000,000 (R. 101).*
Plaintiff alleges that she was a faculty member of the
College from September 1, 1948, until her retirement on Septem-
ber 1, 1982 (R. 72, % Ad) From 1948-1953, she was a member of
New York State Public Pension Systems, and from 1953-1968, she
was a member of the New York City Employees’ Retirement System
(R. 78, 41 24). On September 1, 1968, she transferred membership
to defendant Retirement System (R. 77, © 23). |
In the complaint, plaintiff alleges that she began to
receive pension checks from defendant Retirement System on
January 2, 1983 (R. 72-73, 11 14-15). She says that the checks
did not reflect the benefit for thirty years of service to which
= Simultaneously with commencing the present action, plain-
tiff filed a virtually identical complaint Clissuras Vv.
City of New York, CV 85-318C (E.D.N.Y. December 12, 1985)
(judgment and order) (Weinstein, C. 3.) (R. 165-97). The
District Court dismissed that complaint as to all defen-
Gants on the grounds that plaintiff's claims were barred by
the statute of limitations and that no constitutional
violation existed. The court, in its discretion declined
to exercise pendant jurisdiction over plaintiff's state law
claims. The Second Circuit Court ef Appeals affirmed the
decision of the district court on March 31, 1986
Clissuras v. City of New York et al., No. 85-9002. Plain-
tiff moved for a rehearing en banc, which. the circuit
denied on June 4, 1986. Then, plaintiff filed an appeal
and petition for a writ of certiorari which the Office of
the Clerk returned to her because there was no provision in
the Rules for such a procedure. Plaintiff has sent another
appeal/petition to the United States Supreme court whose
status is not yet resolved.
er ey Oe ee eT ae
REC. ON AP., P. 74
she was entitled (Rm. Je, 9 16) and that, before retiring, she
Was not informed about either a thirty-year benefit Or a possi-
ble thirty-five year benefit (R. 74, q 19). -
In addition, plaintiff alleges that the computation o:
her pension, which was not originally explained to her (R. 73,
f 15), was in error in several respects (R. 77-83, 49¢ 23-33).
For example, she Says that the Retirement System has negligent],
maintained that she was not a member of any retirement system
for the years 1951-1953, that she needlessly paid $2501.54 for
nose years, and that the $2501.54 has never been credited to
wer annuity (R. 793, 4q 28). Plaintiff also alleges that her
pension has not been calculated on the basis of her entire 34
years of teaching (R. 80, 9 wa).
On these alleged facts, plaintiff asserts three claims
against the Insurance Department. First, she claims that th
Department had a fiduciary responsibility to inform her about
pension options before her retirement and failed to so so. (R.
13-14, % 28s, Because, according to the complaint, "male and/or
non-Christian teachers" were so informed (R. 74, 9 19) by
ct
someone not identified, Plaintiff concludes that the Departmen
Rec. on Ap., pe. 750
discriminated against her (R. 73-74, 49 18-19). Second, she
Claims that, after her retirement, when she sought help from the
Insurance Department, it was negligent in not crediting her with
three years of membership in the New York State Employees’
Retirement System on the basis of alleged proof she tendered in
a létter (R. 80-81 § 32(A)). Third, plaintiff claims that the
Insurance Department wrongly denied her a "hearing before
rendering its decision that all [computational] errors had
been
corrected and appropriate adjustments made in... [her]
benefits..." (R. 93, 9 43(E)).
Plaintiff asserts four claims against the City Univer-
sity. First, she claims that the City University wron
her counseling and help before her retirement (R. 73-77
17 18-20). Second, she claims that the College negligert
reported incorrect information to the Retirement System (R.
80-81, § 32(A)-(B)). Third, she claims that, by failing to
S laintiff argues that Melani v. Board of Higher £
261 F. Supp. 768 (S.D.N.Y¥. 1983), establishes a
a victim of sex discrimination by the City Univer
However, that case merely discussed whether the ity
University discriminated against women in the payment of
Salaries. Melani, 561 F. Supp. at 772. The court specifi-
cally stated that it made no findings as to any alleged
discriminatory practices in such matters as hiring, promo-
tion or fringe benefits. Id. The final consent decree
e
(the decree at R. 511-14 is merely the proposed de
also explicitly did not resolve whether City Unive
have discriminated in the payment of pension bene
(A copy of the final order in Melani is attached
Exhibit A). Thus, the Melani litigation i
irrelevant to the case at hand.
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Rec. ON Ap.. P. 751
advise her, the College is responsible for her having made
unwise choices throughout her employment. For example, plain-
iff claims that "misinformation" from the College caused her to
withdraw funds from State Systems (R. 81, 7 32(C); R. 98,
§ 46(A)). Fourth, she claims miscellaneous acts of wrongdoing
tiring her employment; e.g., in 1978, the College discri-
minatorily docked 20 days from her sick leave (R. 98-99,
§ 46(b)), and, in 1981, the College incorrectly informed her
that a course had been cancelled (R. 99, 7 46(C))
B Proceedings in Special Term
Rll defendants moved to dismiss the complaint (R. 148,
301, 439, 491, 571) All motions were successful (R. 9, 19,
29 The City defendants, the Insurance Department and the City
,
University argued, inter alia, that the four-months limitations
period applicable to Article 78 proceedings applied and that it
had expired (R. 157-59, 328-31, 525-29) Special Term (Shaw,
J.) dismissed the complaint as to the City defendants and the
Insurance Department on this ground (R 12) Special Term
Hurowitz, J.) found that the decision of Justice Shaw dismiss-
i the complaint as to the City defendants and the Insurance
Department (fF 12) represented the law of the case and dismissed
the complaint as to the City University and the Union on that
Rec. on Ap., P. 752
ground (R. 63-64).© Special Term (Bernstein, J.) dismissed the
complaint as to Rosenberg on the ground that the complaint
failed to state a cause of action against him (R. 19-21).
ARGUMENT
POINT I
SPECIAL TERM CORRECTLY RULED THAT
PLAINTIFF'S CLAIMS AGAINST THE
INSURANCE DEPARTMENT AND THE CITY
UNIVERSITY ARE BARRED BY THE
FOUR-MONTH STATUTE OF LIMITATIONS
APPLICABLE TO ARTICLE 78 PROCEEDINGS.
CPLR § 217 provides, in part:
Unless a shorter time is provided in the
law authorizing the proceeding, a proceeding
against a body or officer must be commenced
within four months after the determination
6 Relying upon the decision of Judge Jack B. Weinstein o
United States District Court for the Eastern Distric
New York dismissing plaintiff's federal complaint, J
Hurowitz also found that plaintiff raised no claim o
constitutional significance (R. 62).
to be reviewed
pnetitioner. ..
becomes final
7
upon
Rec. ON Ap., P. 753
the
Plaintiff commenced this action against the Insurance
rn
epartment on August 27,
a
gainst the City University on October 30,
1985 (R. 307, 97 9).
She com
1985
enced it
(R.
With respect to the Insurance Department, plaintiff knew at the
ry l
O
Unive
~
~
sity
"The 'determination'
atest in February 1985,
rmity with applicable statutes" (R.
sl
re
0)
=
her pe
the procedures used by the Retirement System were
to take her
With
in February 1983, or
disagreed with
nsion benefits
which CPLR 217 speaks of,
moment of finality starts the four months,
to what is strictly
determination follows a quasi-judicial
‘mandamus to
tive determination involves discretion
law, but also to
speaking ‘certiorari,
review, '
305-06,
laintif
respect
-
(R. 495,
hearing mandated
whe
that the Department had reviewed
and had concluded that all errors had been corrected
"in
17 6-7).
f knew that the
side in this
to the City
hortly thereaf-
S
her position regarding
4 3: BR.
and whose
applies not only
where the
re an administ
a plenary hearing.
fore,
The involvement of
is one strong indicator that the
but does not requi
discretion, there-
"final determina-
tion' moment starts the four months."
York Practice § 566,
also J. McLaughlin,
508 (McKinney 1972);
& A. Miller,
at 792 (1978)
Practice Commentaries,
see generally 8 J. Weinstein,
New York Civil Practice,
D. Siegel, New
(footnote omitted).
GS 2i7:4 86 ®:
RH. &
1 7804.02 (1983).
Ce
REC. ON Ap., p. 754
sneeenaeiniaiienacicaes ease’
501-02). Further, in January 1984, she knew that the College
had given her all Payroll information it could give her and
that, in the College's view, it had credited her with the
maximum sick Sauaia allowable (R. 496, 97: R. 509-10).
Because plaintiff seeks the review of administrative
determinations necessarily made before she received her first
pension check in 1983 (R. 72-73, 99 14-15), it follows that this
action is barred by the four-months limitations period. See
Shields v. Hofstra University, 77 A.D.2da 867 (2d Dep't 1980);
‘
In re Greenbaum, 48 A.D.2d 969 (3d Dep't 19758). Cf. In re
De Milio, 55 N.Y.2d 216 (1982) (where a probationary employee's
employment is terminated and he has no right to a hearing, the
four-month period begins to run from the date of his dismissal,
not from the date of the refusal of his request for
reconsideration).
In Greenbaum, petitioners contested their failure of
the examination required for licensing as Nursing Home Adminis-
trators. Holding that the four-month period commenced when they
received notice of their failure, the court rejected th
argument that their petition was in the nature of a mandamus ¢
The petition explicitly attacks the proce-
dures employed in developing and Grading the
examinations. It quite obviously seeks
review of respondents' various determina-
tions in administering those tests, yet
raises no genuine question of any failure on
respondents' part to perform any duty
enjoined upon them by law. Asa result,
a - 10 -
eee
REC. ON Ap., Pp. 755
petitioners’ contention that *he instant
proceeding is in the nature of mandamus to
compel certain action, for which the appro-
priate time limit would commence running
upon their demand and refusal of access to
the examination questions and answers, is
without merit.
48 A.D.2da at 969-70 (citations omitted).
In Shields v. Hofstra, plaintiff was a law student who
brough
ught.a contract action challenging her academic dismissal
om defendant law school. Hofstra argued that the action was
properly an Article 78 proceeding and that 1t was time-barred.
he court held that the complaint failed to state a cause of
action but also agreed with Hofstra that, had thé action been
Filed as an Article 78 proceeding, it would have been untimely:
Assuming, without deciding, that plaintiff's
claims of arbitrary and capricious conduct
by defendants, although not arising out of
contract, are cognizable in a proceeding
pursuant to CPLR article 78, we agree with
defendants that, if this action were to be
converted to such a proceeding (see CPLR
103, subd [C]), the proceeding would be time
arred since it was commenced more than four
months after plaintiff received final notice
of the law school determinations that she
was academically ineligible to continue her
studies and that her application for a
second extension of her conditional advance-
ment had been denied. Plaintiff's request
for _a reconsideration of these determina-
tions . . . did not operate to extend the
limitations period.
77 A.D.2da at 869 (emphasis added).
Thus, aside from plaintiff's lack of standing to sue
the Insurance Department, which has not even allegedly deprived
her of any benefits or made any erroneous calculations which
-~ <? =
REC. ON Ap., P. 756
affect her benefits, her action is untimely.® Even if one
assumes that plaintiff has a recognizable cause of action
against the Insurance Department, her letters to the Department
after her receipt of the Department's January 31, 1985 letter
(R. 318-20, 406-07) are only contentious requests for recons
eration, which, under Greenbaum and Shields, do not extend the
limitations period. Similarly, even if one assumes that pla
a
9 _
mse
tiff had cognizable claims against the City University, for
allegedly reporting incorrect information to the Retiremer
.
System, those claims could be litigated only in an Article 78
proceeding which would have been untimely if commenced at the
time she commenced this action. Her persistence
correctness of her calculations (R. 501-02, 503-04, 509-10) does
not, under Greenbaum and Shields, extend the limitations
QO
Plaintiff's arguments that the four-month statute
Wad
limitations does not apply are unavailing (Plaint
ntiff-appellant s
Brief at 45-48). It is clear from plaintiff's argument that >
8 The Insurance Law specifically provides that
"Injotwithstanding the specific enumerations of the right
to judicial review in this chapter, any order, regulation
or decision of the superintendent is declared to be subjec~
to judicial review in a proceeding under Article
Seventy-Eight of the civil practice law and rules." N.Y
Ins. L. § 326 (McKinney 1985). Thus, any claim plaintif
might have had with respect to the Department's review o
her file and its refusal to grant her a formal hearing
ng
could be maintained only in an Article 78 proceeding.
Rec. ON Ap.. P. 757
disagrees with the legislature's wisdom in prescribing a
relatively short limitations period for review of administrative
determinations and that she further disagrees with its wisdom in
prescribing a form of proceeding for such a review which does
not ordinarily involve full discovery (id. at 45-46). Essen-
tially, plaintiff attempts to escape the statutory prescriptions
by arguing that she has raised claims for constitutional viola-
tions and for fraud, which are not governed by the four-months
limitations period.” But as to her argument that she has been
the victim of constitutional violations, Justice Hurowitz
specifically found, as did Judge Weinstein, that her complaint
did not allege the infringement of any constitutional right (R.
62). As to her argument that she has been the victim of a
fraudulent scheme on the part of defendants to withhold retire-
ment benefits from her, plaintiff does not plead fraud with the
specificity required by CPLR § 3016(b). Since there was no
concealment of a theft by defendants, the cases cited by plain-
ff at p. 47 of her memorandum for the proposition that the
statute of limitations has been tolled are inapposite. Special
9 Plaintiff also argues that she has been discriminated
against and that her discrimination claims are not governed
by the four-months limitations period (Brief at 45-46).
Plaintiff's claims that defendants have discriminated
against her because of her sex and religion are purely
conclusory (R. 73-74, 91 18-19). In any event, as shown in
Point IV, infra, her claim: for sex discrimination is
barred.
Rec. ON Ap., P. 758
Term properly dismissed the complaint on the ground that the
statute of limitations had expired.
POINT II
PLAINTIFF HAS NO PRIVATE RIGHT OF
ACTION FOR AN ACCOUNTING AGAINST
THE INSURANCE DEPARTMENT.
The Insurance Department has general supervisory
powers over New York Retirement Systems. N.Y. Ins. L. §§ 4601
et seg. (McKinney Pamphlet 1984). Among other things, the
Department reviews applications of retirement systems to deter-
mine whether the proposed "rates of contribution are adequate
and .. . [whether] the plan of operation is sound and equita-
ble" and, if so, it issues licenses “authorizing the retirement
system to do the business described in the plan." Id. at
§ 4602(b).
Nowhere in the Insurance Law is there a provision
allowing an individual member of a retirement system to demand
an investigation of her file or to demand a hearing. Contrary
to plaintiff's mistaken notion (R. 93, 43(E)), the Insurance
Law does not establish or authorize a claims procedure within
the Insurance Department. The Law simply creates no duty on the
part of the Insurance Department to guarantee that the account
of an individual member of a retirement system is properly
maintained. Hence, an individual retiree cannot demand either
an accounting or a hearing from the Insurance Department.
» 14 -
REC. ON AP., P. 759
POINT ill
THE SUPREME COURT LACKS SUBJECT MATTER
JURISDICTION TO DETERMINE PLAINTIFF'S
CLAIMS AGAINST THE INSURANCE DEPARTMENT.
As noted above, plaintiff seeks both compensatory a.nd
punitive damages from all defendants. Because the Insurance
Department is an agency of the State of New York, see N.Y. Ins.
L. § 201 (McKinney 1985), any action for damages against it can
be maintained only in the Court of Claims. See N.Y. Court of
Claims Act § 9. The Supreme Court does not have subject matter
jurisdiction to determine such claims. E.g., Psaty v. Duryea,
,
306 N.Y. 413, 417 (1954); Hongisto v. Mercure, 72 A.D.2d 850 (3
Dep't 1979). =
Plaintiff's attempts to bestow subject matter juris-
diction upon the Supreme Court (Plaintiff's Brief at 34) are
unavailing. She cites no authority -- factual or legal <-- to
support the propositions that the Insurance Department is not a
tate agency and that it may be sued for damages in the Supreme
Court. Her argument that it would be inconvenient for her to
sue the Department in the Court of Claims while pursuing this
action against the other defendants (Plaintiff's Brief at 34-3
misses the point entirely: plaintiff's convenience is not the
test for subject matter jurisdiction.
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Rec. On Ap., P. 761
DEFENDANTS-RESPONDENTS* (State DEFENDANTS)
EXHIBIT A: ORDER
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT
MELANIE, ET AL. V. BOARD OF HIGHER FOUCATION
PP. 762-765
Rec. on,Ap., Pp. 762
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Rec. on Ap.. P. 766
BRIEF OF UNION ATTORNEY To be argued by
DEFENDANT -RESPONDENT Aww Tenrss Mclwrraz
(pp. 766-779)
(Time For Anoumewt: 10 Miwvres)
New York Supreme Court
Appellate Division—Second Department
ALICE CLISSURAS,
Plaintiff-A ppellant,
sgamnst
CITY OF NEW YORK, TEACHERS’ RETIREMENT
BOARD OF THE CITY OF NEW YORK, TEACHERS’
RETIREMENT SYSTEM OF THE CITY OF NEW
YORK, BOARD OF HIGHER EDUCATION OF THE
CITY OF NEW YORK, CITY UNIVERSITY OF NEW
YORK, NEW YORK CITY TECHNICAL COLLEGE,
PROFESSIONAL STAFF CONGRESS/CUNY, DE
PARTMENT OF INSURANCE OF THE STATE OF
NEW YORK, and LEWIS ROSENBERG,
Defendants-Respondent
BRIEF FOR DEFENDANT-RESPONDENT
LEWIS ROSENBERG
— —_ —————e ES —_
Benoanano, Zicnetco & Bascuix
Attorneys for Defendant-Respondent
Lewis Rosenberg
420 Lexington Avenue
New York, New York 10170
(212) 972-5560
Aww Teneas Mclwrvee
Of Counsel
Rec. ON Ap., P. 767
ITENTS
TABLE OF CC
<_
ta)
OF
A CAUSE
Rec. ON Ap., pP. 768
Table of Cases
- Becker v. Julien, Blitz & Schlesinger, P.C. 95 Misc.2d
64, 406 N.Y.S. 2d 412 (Sup. Ct. N.Y. Co. 1977, (modified
on other grounds, 66 A.D.2d 674, 411 N.Y.S.2d 17 (lst Dept.
APIGis « « We ee ee Oe ee ee ee ee eee ay ee ae ee ee ee ee ee
Freschi v. Grand Coal Venture, 564 F.Supp. 414 (S.D.N.Y.
1983).
'@8)
Spector v. Mermelstein, 361 F.Supp. 30 (S.D.N.Y L972)»
modified on other grounds, 485 F.2d 474 (2d Cir. 1973 <)
11
Rec. ON Ap., P. 769
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND DEPARTMENT
-_ — — _ -_-_ - _ _ — _- _ —_ _ -_-_ -_ —- —_ _ - XxX
ALICE CLISSURAS,
Plaintiff-Appellant,
-against-
CITY OF NEW YORK, TEACHERS' RETIREMENT
BOARD OF THE CITY OF NEW YORK, TEACHERS'
RETIREMENT SYSTEM OF THE CITY OF NEW
YORK, BOARD OF HIGHER EDUCATION OF THE
CITY OF NEW YORK, CITY UNIVERSITY OF
NEW YORK, NEW YORK CITY TECHNICAL COLLEGE,
PROFESSIONAL STAFF CONGRESS/CUNY,
DEPARTMENT OF INSURANCE OF THE STATE OF
NEW YORK and LEWIS ROSENBERG,
Defendants-Respondents.
- _ —_ -_ _ _- - — —_ _ _- _ — —- _— — _ — _ x
Preliminary Statement
This brief is submitted on behalf of the defendant-
respondent Lewis Rosenberg, in response to the appeal by the
plaintiff-appellant Alice Clissuras from the order of the Hon.
Aaron D. Bernstein of the Supreme Court, Kings County, dated
December 24, 1985, which granted the motion by defendant-
respondent Rosenberg for an order pursuant to CPLR 3211(a) (7)
dismissing the plaintiff-appellant's complaint against him.
1 ' ' M
‘R" references are to pages in the Rocord on Appeal.
Rec. ON Ap., P. 7/70
Statement of Facts
Appellant's complaint (R.69-101) contains four causes
of action. The claim against Rosenberg is mentioned in the
Fourth Cause of Action.
Appellant alleges that she was employed by the
respondent New York City Technical College from September l,
1948 to September 1, 1982, the effective date of her retirement.
(R.72) Appellant further alleges that her first pension check
was dated December 31, 1982, and was received in the mail on or
about January 2, 1983. (R.72) The amount of her pension was
approved by the respondent Teachers’ Retirement Board of the
City of New York on January 20, 1983. (R. 72) Appellant claims
that the amount of her pension checks was lower than she should
have received from her 34 years of service. (R.73)
Appeliant alleges that she was never informed of a 30
year benefit, which was concealed by all respondents, and that
the calculation of her pension is incorrect. (First Cause of
Action, R. 72-77) Appellant further alleges that the respondent
Teachers’ Retirement System of the City of New York failed
Le
to
grant credit for some three years of prior service, and
concealed information as to prior service credit. (Second Cause
of Action R. 77-83) Appellant further alleges that the
respondent Retirement System has refused to provide certain
Rec. ON Ap., P. 771
records to appellant and has been negligent in the keeping of
appellant's financial records. (Third Cause of Action, R. 83-
87)
Appellant also alleges that she has been deprived of
certain other rights by each of the above named respondents,
(Fourth Cause of Action, R. 87-101), and alleges that respondent
Lewis Rosenberg was retained by the respondent Professional
Staff Congress/CUNY (“the Union"), to represent her in a legal
action against the Retirement System to gain needed information
and to correct any errors (R.95); that she met with respondent
Rosenberg on February 15, 1983 (R.95); on March 25, 1983 she
spoke with a Mr. Rothman, an associate of respondent Rosenberg,
who discussed a possibly applicable four-month limitations
period with her, among other things (R.95-96); and that on April
5, 1983, she was informed by letter that respondent Rosenberg
would not continue as her attorney and in that letter respondent
Rosenberg again expressed concern about a short limitations
period. (R.96)
Respondent Rosenberg moved to dismiss the complaint :
for failure to state a claim upon which relief can be granted.
In a decision dated December 20, 1985, the Hon. Aaron
D. Bernstein dismissed the complaint against respondent
Rosenberg for failure to state a cause of action, stating, among
other things, as follows:
Rec. ON Ap., P. 772
"It is obvious from the very detailed motion
papers submitted by the plaintiff that all of
her claims occurred prior to the meeting with
the defendant Rosenberg and that she has
suffered no damages by virtue of any
malpractice or negligence on the part of the
defendant Rosenberg.” (R.20)
The other respondents also successfully moved to have
the complaint against them dismissed. A judgment by the Hon.
James H. Shaw, Jr. dated December 18, 1985 dismissed the
complaint as against respondents City of New York, Teachers'
Retirement System of the City of New York and the Department of
Insurance of the State of New York as barred by the statute of
limitations. (R.9-11)
By order of the Hon. Barry Hurowitz, dated
February 14, 1986, the complaint was dismissed against
respondents Board of Higher Education of the City of New York,
City University of New York, New York City Technical College and
Professional Staff Congress/CUNY (R.29-30) on the ground that
the action was barred by the four-month statute of limitations
As to the other respondents (all others except
Rosenberg) the complaint against them is a claim for an
accounting and for damages, essentially a special proceeding
seeking a determination that decisions concerning appellant's
pension were made in violation of a lawful procedure or affected
by an error of law, or was arbitrary and capricious or an abuse
of discretion (CPLR §7803(3)). In essence, plaintiff seeks
Rec. ON Ap.. P. 773
review of a decision concerning the amount of her pension made
over three years ago. The claims against the other respondents
would, therefore, necessarily be in the form of an Article 78
proceeding, barred by the four-month statute of limitations.
Respondent Rosenberg's motion, however, was based on
failure to state a cause of action against him.
Appellant lists two full pages of issues and "sub"-
issues in her brief. However, as to defendant Rosenberg, the
issue is solely whether the respondent's complaint successfully
states a cause of action. Justice Bernstein properly concluded
that it did not.
Question Presented
Does the complaint state a cause of action against
respondent Lewis Rosenberg?
Justice Bernstein correctly held that the complaint-
falls to state a cause of action against respondent Lewis
Rosenberg.
ee
Rec. ON Ap., Pp. 774
Point
THE COMPLAINT FAILS TO
STATE A CAUSE OF ACTION
AGAINST RESPONDENT
LEWIS ROSENBERG
Appellant's claims are that she has been damaged as a
result of inaccurate calculation of her pension benefits (First
Cause of Action, R.72-77), that she has been denied credit for
prior service (Second Cause of Action, R.77-83), that the
Teachers’ Retirement System has refused to provide her with
financial records (Third Cause of Action, R.83-87), and that she
has been deprived of other rights (Fourth Cause of Action,
R.87-101).
The claim for deprivation of other rights contains
allegations against the other respondents and respondent
Rosenberg (R.95-97).
Appellant alleges that respondent Rosenberg deprived
her of certain rights, alleging that the respondent Union
retained the Shapiro, Shiff, Betlly, Rosenberg & Fox firm to
represent her, that she met with respondent Rosenberg on
February 15, 1983 and that on April 5, 1983 respondent Rosenberg
sent a letter informing her that he would not continue as her
attorney, and informing her that a short statute of limitations
may be applicable. (R.96-97)
~+~6§-
Rec. ON Ap., P. 775
Appellant makes the following claim against respondent
Rosenberg in subparagraph (G) of paragraph FORTY-FIFTH of her
compiaint:
"By reason of all of the aforesaid, defendant
Lewis Rosenberg was negligent in the conduct
of plaintiff's case in that he took no steps
and had no file in furtherance of plaintiff's
case. He did not discuss plaintiff's case
and legal rights with her. He withheld
information from plaintiff as to her pension
benefits and legal rights. He terminated
representation of plaintiff with no
direction.” (R.97)
Even taking all of appellant's claims against
respondent Rosenberg as true, the-complaint fails to state a
claim for legal malpractice against respondent Rosenberg, and
must be dismissed.
In order to state a claim for attorney malpractice
appellant must establish that the alleged loss was proximately
caused by the attorney's negligence. As was stated by the court
in Newman v. Silver, 553 F.Supp. 485 (S.D0.N.Y. 1982):
"A claim for malpractice, however, also
requires a showing that the client's injury
was caused by the attorney's malpractice or
negligence ... This requires a showing that
the result would have been altered in the
underlying action had his attorney not been
negligent."
553 F. Supp. at 495.
In other words:
“Before a plaintiff can succeed in an action
for legal malpractice, he must be able to
demonstrate that if not for the alleged acts
Rec. ON Ap.. P. 776
of malpractice, he would have been able to
recover or proceed in a manner other than
that which actually eventuated.”
Becker v. Julien, Blitz & Schlesinger, P.C., 95 Misc.2d 64, 406
N.¥.S.2d 412, 414 (Sup. Ct. N.¥. Co. 1977), modified on other
grounds, 66 A.D.2d 674, 411 N.Y¥.S.2d 17 (lst Dept. 1978). See,
Freschi v. Grand Coal Venture, 564 F.Supp. 414 (S.D.N.Y. 1983);
Spector v. Mermelstein, 361 F.Supp. 30 (S.D.N.Y¥. 1972), modified
on other grounds, 485 F.2d 474 (2d Cir. 1973).
Any injuries appellant may have suffered were
sustained before appellant ever met respondent Rosenberg.
Appellant retired on September 1, 1982 (R.72); she began to
receive pension checks on January 2, 1983 (R.72); she claims
that before her retirement she was not informed about a thirty
year or thirty-five year bonus or benefit and that respondents
discriminated against her for failing to provide this informa-
tion. (R.74)
By her own admission, appellant did not meet
respondent Rosenberg until February 15, 1983. (R.95) He can
hardly have caused or contributed to the failure to inform
appellant of various pension benefits before her retirement on
September 1, 1982.
Appellant claims respondent Rosenberg was negligent in
the conduct of her case. However, appellant's allegations fail
to state a claim against respondent Rosenberg because appellant
has not and cannot claim that respondent Rosenberg's actions or
Rec. on Ap.. P. 777
inactions caused her any injury, or that she would have been
able to recover or proceed in any manner other than what has
eventuated as a result of respondent Rosenberg's acts. Secker
vy. Julien, Blitz & Schlesinger, P.C., Supra.
Assuming for the sake of argument plaintiff had a
claim against the City and the other respondents for alleged
improper pension calculations, such a claim would have to be
brought in the form of an Article 78 proceeding subject to a
four-month statute of limitations. (See the decision of Justice
James H. Shaw, Jr. R.12) Plaintiff cannot claim that the acts
or omissions she alleged against respondent Rosenberg caused her
any injury by preventing her from bringing such proceeding.
Appellant alleges September 1, 1982 as the effective
date of her retirement (R.72); December 31, 1982 was the date of
her first check which was received on or about January 2, 1983
(R. 72); the amount of her pension was approved by the
respondent Teachers’ Retirement Board on January 20, 1983.
(R.72)
Appellant claims that respondent Rosenberg was
retained by the respondent Union to represent her in a legal
action against the Retirement System to gain needed information
and to correct errors. (R.95) Appellant met with respondent on
February 15, 1983 (R.95); om March 25, 1983 she spoke with an
associate of respondent Rosenberg who discussed a possible
four-month limitations period (R.95-96); and on April 5, 1983
Rec. on Ap.. Pp. 778
she was informed by letter from respondent Rosenberg that he
would not continue as her attorney, and she was again warned
about 4a short limitations period which may be applicable. (R.96)
A copy of that letter appears at R.490.
Assuming the limitations period began to run on the
various dates alleged in the complaint, respondent Rosenberg’s
alleged inaction did not preclude appellant from maintaining an
action.
If the limitations period commenced on the date of
retirement, September 1, 1982 (R.72), it would have expired
before respondent Rosenberg ever met the appellant on February
15, 1983. (R.95)
Appellant's first pension check was received on
January 2, 1983 and was dated December 31, 1962. (R.72) Using
these dates to commence the running of the statute of limita-
tions, the limitations period would have expired either April
31, 1983 or May 2, 1983, after respondent Rosenberg notified her
by letter of April 5, 19863 (R.96) that he would not continue as
her attorney, which letter warned appellant of the possibly -
applicable short limitations period. (R.490)
The amount of appellant's pension was approved
January 20, 1983. (R.72) Using this date‘it is clear that the
limitations period would then have expired May 20, 1983, weeks
-10-
A
fad
Rec. on Ap.. Pp. 779
ondent RoseAberg notified her he would no ionger
her and warning of the possibly applicable short
ons period. (R.96
T*
is clear that there is nothing respondent Rosenberg
i not do which caused or contributed to appellant's
r all the reasons set forth above, tne order of
> *
9. Bernstein dismissing the complaint against
ent Rosenberg should be affirmed.
BERGADANO, ZICHELLO
Attorneys fo
Lewis Rosenb
-ll-
Rec. On Ap., Pp. 780
BRIEF OF UNION DEFENDANT-RESPONDENT (pr. 780-798)
To be argued by:
D. Nicholas Russo
5 Minutes Requested
Supreme Court of the State of New York
APPELLATE DIVISION — SECOND DEPARTMENT
ALICE CLISSURAS,
Plaintiff-Appellant,
= against -
CITY OF NEW YORK, TEACHERS’ RETIREMENT BOARD
OF THE CITY OF NEW YORK, TEACHERS’ RETIREMENT
SYSTEM OF THE CITY OF NEW YORK, BOARD OF HIGHER
EDUCATION OF THE CITY OF NEW YORK,
CITY UNIVERSITY OF NEW YORK, NEW YORK CITY
TECHNICAL COLLEGE, PROFESSIONAL STAFF
CONGRESS/CUNY, DEPARTMENT OF INSURANCE OF THE
STATE OF NEW YORK, and LEWIS ROSENBERG,
Defendants - Respondents.
BRIEF FOR DEFENDANT - RESPONDENT
PROFESSIONAL STAFF CONGRESS/CUNY
—[—[—[_—[_—[_$_ [_ >_> <___{_£_{£*—__£=<*—*—~@—=i—=—$_—[—>_>_>_>_>——————
D. NICHOLAS RUSSO
Attorney and Director of Legal Affairs
for Defendant- Respondent,
Professional Staff Congress /CUNY
25 West 43rd Street
New York, New York 10036
(212) 354-1252
PRINTINGHOUSE PRESS — (212) 719-3120
Rec. ON Ap., P. 781
TABLE OF CONTENTS
PAGE
Tabi GE BESS LELOS oc 65.6 ks RES ee oo oS eee ii
PrGLiMinacy SCARS. oc55 08 6:86 6NS ORR e see eet ese l
Juestions Presented with Respect to
Defendant Professional
SCatl COmgPGGh CUMS <6 64060608 bw se ewes eS Ree EES 4
StatemenG GE FACE «6.46% oa 00h 008 Oe eee Cee ebeee 5
Argument
POINT i: PLAINTIFF's ACTION IS
BARRED BY THE STATUTE
He Eee eek Ola. «osc 6 dee ei 608 ae Oe 8
POINT Zi: PLAINTIFF FAILS TO STATE
A CAUSE OF ACTION AGAINST
DEFENDANL POG s««85.04 cee iad aa be 4 eee LR
POINE LLks SUMMARY JUDGMENT SHOULD
BE GRANTED TO DEFENDANT e
COG ab 66 0S © 6k BRE OR ee NE eRe EEE Be a 14
CONCLUBLONR. . s cicc cs 644 00 44S. So oe Oe eee eee eee es 5
REC. ON Ap., P. 782
TABLE OF AUTHORITIES
PAGE
I. CASES
A. Federal Courts
Del Costello v. Teamsters, 462 U.S.
15], 103 S.Ct. 2281, 76 L.Ed.2d 476
(1983)
United Airlines v. Evans, 432 U.S.
553 (1977)
B. New York State Courts
Alexander v. Mt. Sinai Medical Center,
96 A.D.2d 488, 465 N.Y.S.2d 201, (lst
Dept., 1983)
Baker v. Board of Education of West
Irondequoit, 507 N.Y.S.2d 304 (4th
Dept., 1986)
Callens v. Simmons Machine Tool Corp.,
110 A.D.2d 994, 488 N.Y.S.2d 282 (3rd
Dept., 1985)
Ferri v. Public Employees Federation,
115 A.D.2d 814, 495, N.Y.S.2d 759
(32d Dept.» AGOS) «ccs casvcasecarncsecsccseses 9
Gerber v. Amalgamated Transit Union,
124 Misc.2d 306, 476 N.Y.S.2d 728
(Sup.Ct., Onondaga, 1984)
Lohier v. District 1199, 96 A.D.2d
884, 466 N.Y.S.2d 39 (2nd Dept., 1983)....... )
Mohan v. United University Professions,
127 Misc.2d 118, 485 N.Y.S.2d 404
(Sup.Ct., Chautauqua, 1984)...-.-ee sees neees 9
Taylor v. St. John's Episcopal Hospital,
96 A.D.2d 886, 466 N.Y.S.2d 43 (2nd
Dept., 1983)
REc. ON Ap., P. 783
PAGE
Lis STATUTES
A. Federal
Civil Rights Act of 1964 as Amended,
Titia VIE, 42 Wit Or BROS 664k 0 0 soe nen wee 1
National Labor Relations Act, Section
it) were e rere ee eer Te Tee er oy eee re ee 8, 10
B. State
5 N.Y. Code, Rules & Regulations,
Section 204.2 (0) CAP ii acccccuecawseas 10
N.Y.S. Civil Practice Law & Rules:
SOCCEONR JAA oo 6 dO 6K 604 SHEED OO ew Od 4
SOGRSGR JARs 6 dc KkKeke a was seed aendeaese 4
ACCEGAS FE vedic de 6b eee he ROHS OKO 19
N.Y.S. Education Law, Article 125
($6201 GE-GSGc gg) Seve ccc ssesesesesessaesesvessn oo Ae
N.Y.S. Retirement and Social Security
Law, SOGCION 4270 cc acne ercresnaawedass eee Se be
C. Local
Administrative Code of the City of New
York, Chapter 20, Title B .ccscecvessececsess 6, 13
iii
Rec. ON AP., P.
784
PRELIMINARY STATEMENT
The plaintiff-appellant ("plaintiff") complains in this
case that the Teachers' Retirement System of the City of New
York ("TRS") -- a public pension system created by statute --
miscalculated her pension benefits.
She alleges in the complaint that various agencies of
the City and State of New York.-- Teachers' Retirement System,
Teachers Retirement Board, Board of Higher Education of the
City of New York, City University of New York, New York City
Technical College and the Department of Insurance of the State
of New York -- as well as the defendant-respondent union,
Professional Staff Congress/CUNY ("PSC") and the lawyer re-
tained by the union to investigate the merit of plaintiff's
concerns about possible pension miscalculation, Lewis Rosenberg,
(also a datenbent-commeadant) , all played a part in wrongly
denying her the totality of pension benefits to which she
claims she is entitled.
At the time plaintiff filed the complaint in the New York
Supreme Court, Kings County, she filed a virtually identical
complaint against the same defendants in the United States
District Court for the Eastern District of New York, alleging
discrimination based on sex and religion and citing Title VII
of the Civil Rights Act, 42 U.S.C. §2000e-5.
Rec. ON Ap., P. 785
On November 14, 1985, Judge Jack B. Weinstein, in open
court, dismissed the plaintiff's complaint as to all defen-
dants. He ruled that her Title VII claims of discrimination
were time-barred and that there had been no violations of the
U.S. Constitution. In addition, Judge Weinstein stated that
the appropriate route for plaintiff to challenge the ca.cula-
tion of her pension benefits was through her simultaneously
filed, parallel state action; and he cited Article 78 of the
CPLR.
Judge Weinstein's decision was upheld by the United
States Court of Appeals of the Second Circuit on March 3l, 1986.
In the instant action, the Court below dismissed the com-
plaint against all the defendants: as to the City of New York,
Teachers' Retirement Board of the City of New York, Teachers'
Retirement System of the City of New York, and the Department
of Insurance of the State of New York in a memorandum decision
of Judge James H. Shaw, Jr., dated November 19, 1985, (Record,
page 12); as to defendant Rosenberg in a memorandum decision
of Judge A. D. Bernstein, dated December 24, 1985, (Record,
pages 19-21); and as to the Board of Higher Education of the
City of New York, City University of New York, New York City
Technical College, and Professional Staff Congress/CUNY by
Judge Barry Hurowitz in open court on December 20,°1985
(Record, Transcript of the Proceedings, pages 32~66, espe-
cially at pages 61-64). With the sole execption of defendant
Rec. ON Ap., P. 786
Rosenberg, the Court dismissed the complaint on the ground
that the actions were time-barred by a four-month statute of
limitations. (The action against defendant Rosenberg was
dismissed because of the failure of plaintiff to have set
forth a cause of action.)
This brief is submitted by defendant PSC in support
of the lower Court's dismissal of the complaint on the ground
that the action was not commenced within the applicable four-
month statutory limitation. It is submitted furthermore in
support of its position that the action should have been
‘dismissed on the additional ground that plaintiff failed to
state a cause of action against defendant PSC or, alterna-
tively, for summary judgment.
Rec. On Ap., P. 787
Questions Presented With Respect To
Defendant Professional Staff Congress/CUNY
Did the plaintiff commence her proceeding against defen-
dant Professional Staff Congress/CUNY ("PSC") ina
timely manner under the applicable statute of limitations
(CPLR §3211 (a) (5))?
The Court below held that the action was
time-barred by the applicable four-month
statute of limitations.
Did the plaintiff fail to state a cause of action
against defendant PSC (CPLR §3211 (a) (7))?
The Court below did not address this issue.
Should summary judgment be granted to PSC (CPLR §3212)?
The Court below did not address this issue.
——————— eEoO~OCwrererereeeeeee
Rec. ON Ap., P. 788
STATEMENT OF FACTS
Plaintiff retired as a member of the faculty of New
York City Technical College of the City University of New
York as of September 1, 1982.
At all times relevant to this proceeding, defendant
PSC was the unincorporated certified collective bargaining
agent (union) of the instructional staff at the City University
of New York (hereafter "CUNY") of which New York City Technical ©
College was one constituent college. CUNY was a pubiic in-
stitution created pursuant to Article 125, §6201 et seg., of
the New York State Education Law. Inasmuch as plaintiff held
the title of Professor, she was a member of the PSC bargaining
unit, thereby covered by the terms of the union contract.
Section 470 of the New York State Retirement and Social
Security Law made amply clear that at all times relevant to
this case the union, PSC, and the public employer, CUNY, were
prohibited from negotiating about matters of pension.
The New York City Teachers' Retirement System (hereafter
“TRS"), which plaintiff maintains in the instant action mis-
calculated her pension entitlement and from which allegation
flows her complaints against defendant PSC (and the other de-
fendants as well), was the public retirement system established
Rec. ON Ap., Pp. 789
pursuant to Title B of Chapter 20 of the Administrative
=
Code of the City of New York.
Plaintiff met with defendant PSC's Director of Staff
Relations Beryl Weinberg prior to plaintiff's retirement
on September 1, 1982 (Record, page 580). PSC's Ms. Weinberg
provided plaintiff with the same consultation that she had
provided to other bargaining unit neuhers contemplating re-
tirement, regarding a projection of what her pension allotment
would be, based upon information provided by plaintiff as to —
plaintiff's age and length of creditable service.
After plaintiff commenced receiving payment of her pension
benefits on or about January 2, 1983 (Record, page 72:414 of
plaintiff's complaint), she again met with defendant PSC's
Ms. Weinberg.
PSC's iis. Weinberg, after receiving permission from the
union's executive director in or about February 1983 (Record,
page 580), retained outside legal counsel, to wit defendant
Lewis Rosenberg, who was to meet with the plaintiff and, if he
deemed her allegations legally actionable, to institute a suit
on her behalf for which the PSC would assume the legal fees.
When plaintiff became dissatisfied with the professional
judgment of defendant Rosenberg in or about April of 1983,
. Rec. on Ap., P. 790
defendant PSC decided it would no longer entertain plaintiff's
unfounded suspicions regarding her pension allotment, and
PS
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.