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

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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

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irt, Second Judicial Department, ent

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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,

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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., 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

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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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-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

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ON

Ap., P. 745

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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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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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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

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Appendix — Clissuras v. City of New York · 484 U.S. 1053 | Frix