# Appendix — Clissuras v. City of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0694%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 484 U.S. 1053 ## Text RDITTOR'S. NOTE THE FOLIOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A : BETTER COPY CAN KE OBTAINED, A NEW FICHE WIL. BE ISSURD, ikl Se A Fp page AIS Aca to si 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. | fe ALICE CLISSURAS Plaintiff-Appellant, pr P. O. Box 021750 Brooklyn, NY 11202-003 (718) 875-6171 ; ct. “agains > > * BOARD OF THE CITY OF NEW YORK, TEACHER CITY OF NEW YORK, TEA -RS* RETIREMENT = 7 2 RETIREMENT SYSTEM OF THE CITY OF NEW YORK, : BOARD OF HIGHER EDUCATION OF THE CITY NEW YORK, CITY UNIVERSITY OF NEW YORK, NEW YORK CITY TECHNICAL COLLEGE, PROFESSIONAL STAFF CONGRESS/CUNY, DEPARTMENT OF INSURANCE OF THE STATE NEW YORK, and LEWIS ROSENBERG Vial ere) | ay , + * Fr ~ > > lake . > eal is i riqd = - ‘ + : , ; r { e paper) \ : i + - TY ? ~~ > } Try ” - + ~> irt, Second Judicial Department, ent "le k - 1? wu? Clerk of said Appellate Division, ont which unanimously affirmed the three vs *e): wi i¢ + >_+ > +o y PY | | 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 were dryers jURPUeIe Sar .* 7, Ve cl reerpy ‘Sywnccy ~VGil c NTW MwA A Wn? f N QUA ”“ , ine NT. Lew Wepanment rue umber tor ths mater 1s ~ REC. On Ap.. Pp. 666 it s assigned to . 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. OO 7 ‘ J a " ‘ : -? YF) " e . . " : : - ' , : ‘ : : ' : BL. : . ; *y ' “ e " : rf “4 ’ Fates ery i F. ' : ) : ¢ j ° - : ‘ ie fannie ' “ss “s . . " ’ -. \« " eintifrf fa e . je fa fF : : oe henry Ff ; ’ “a eae 2 is j . ’ 7 : ee. hy | sAainery _. LL. LL _ ’ . “ja ~ janmeaeuee the jen sve . 4 Pe Ly , , ‘4 .* *ia withleew a8 the pie ' rf a a’ ; ey sf * ‘ [ -. ae : *% wit tf » . ; ery ‘fe ye j ier " - ‘ ; ; “ ; ‘hi. F - ’ ‘at & 4 - . se o@ . ea. ley tLe pial rf fs _ — ; we e : arte ’ sts a e ' : ' we have te we P ena . rf . ’ ’ ’ ’ “oe” . é ° Aw “es . , . - : bal > 7 wt . . ' ad .”" = Rec. ON AP., P. 669 nen es sof Kausoiuy ‘parmumpe Aqasay st Asiuq JO 2NON pue 42P4O uryiia ayy so Adod & JO Id1AJOS Ajawiy pue ang ZOO0I “A ‘N “440A *?N ‘yaa41S y24nyD OUT squepucdssy edrotiny?/ fausony asuno7 “013040440 YyzxOmAUTZ °*T 193°9d SHOX KHAI SOO AR ERX A1quy jo aon0N pue aplio uorsiaiq aze[[addy *squepuodssy-sjUepussed 4*Te Wo YIOK MON FO ATO -ysutebe- ‘quet Teddy-s3Tqutetd ‘seMSSTID SOTTW Jno) aWIaIdNg YIOX MIN Ol ON Xopuy s,y4ay_y AUNO’) aS Og AueTTeddy SPINSSTTD SOTTW 0] TEEP -gg¢ :auoydajay ZOOOIL “A (N “420A *2N yaaass 424n4D OOL juspucdsey Tedrotunpwof Kausonp yasuno7 uo1j040440 ayy yo uorstaiq aieyaddy ayy jo 4491 aya 3 Joyo ay) Ul pasaqua Ainp sem ‘Adod e st ulyytM oy YdIyM JO ‘s9psO UB JeY) “AIILON JAVL asvald 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~ » — * _-> 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 : > . " . ; ‘* ‘ . 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 \ 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 ser ’ ’ ‘ rT + e¢ lonr : > ‘ — ‘ , y ‘ | “wel , J te yr * 7 ‘ ¥ ‘Ts . l« re rs Z A>. Y¥ ii , ‘ ‘ ; ; ; > ’ > , > ’ 7 ~~ + ‘ ‘ ‘ ~ + " ‘ a; Ai ‘ . “> + . . - 2 i i sntc saare «h+ . ‘ y iy y n¢ oo -~ + ai , Rec. ON Ap., P. 723 wa aa ’ . A 4 ba m4 2 4 Cc “4 4 - ‘ . : 4 + +4 a l ra - + + . ' > 4 ~ 4 r4 £ ha 4 s 2 h4 ‘ 4 - \ re. | + ba hu 4 4 + ‘ 4 aa r 4 f c rn + y ant Stephen } rom Mr. James a . Ga Insurance Depart jf. S0OLaESB, 3 fit had rdiner, Su ment, to U n which he lcoulated pervising nited States concluded Actuary Repre: that p Rec. ON Ap., Pp. 724 of the Defend ] bene Ss been ca orrectly and that all her ques- tions had been answered; and on the basis of the January 3l, 1985, letter from Ms. Mary A. Griffin, Executive Assistant t the Superintendent of Insurance Department, in which she : : ided ti uestions raised in laintiff's December 12, 1984, letter t the Superintendent, Mz James P. Cor ran. Th tw etters graphically illustrate the responses of the defend- ints in this action The letter f August 29, 1984, makes attempt t nswer anything specifically. How did Mr. irdine: onclude that plaintiff's benefits are correct? What did he review that showed that plaintiff's questions had been answer: (; 33-384) I his January 19, 1984, letter to plaintiff, the Executive Director of the Pension System stated that all laintifft’ er mm questi ive not bee! i wered (ft 114) Mr. irdiner'’s letter iS a example f the i ure t : t the : fi laims if l 1 her , } , M Terence Lennon, Chief of the ife Insurance ireau, a tat } that all of plaintiff*s questions have been answered and t utations corrected What did Mr. Lennon review that showed this When and where were corrections made? These two letter are examples of the fraudulent concealment of the pension fact The January 31, 1985, letter of Ms. Griffin illustrates thi false information disseminated by defendants. (pr 392-393) Each of Ms. Griffin's answers is false and a ncealment REC. ON AP., P. 7255 i ~34- of the pension laws applicable to plaintiff. On January 3l, 1985, the Insurance Department was still saying that plaintiff was not a member of a pension system for the period 1951-1953 (p. 392, second A.) Plaintiff sent proof of membership to all and to the Insurance Department on April 30, 1984 (p. 373). Plaintiff made handwritten notes on Ms. Griffin's letter to highlight the errors since the response regarding membership in a pension system in 1951-1953 indicated that no one was re- viewing the matter. Ms. Griffin's response also indicated that the prior service automatic crediting as required by Law was being concealed again. Attorney Bohringer characterizes plain- tiff's handwritten comments) as "Refusing to accept the Depart- ment's answers * * *." Attorney Bohringer makes no comment as to the substance of Ms. Griffin's responses and no comment as to their accuracy or lack thereof (p. 325). Further, Attorney Bohringer argues that the Supreme Court of the State of New York iacks subject matter jurisdictio: to determine plaintiff's claims (pp. 326-327). Plaintiff argues that the Supreme Court has subject matter jurisdiction in this action. As to public agencies, claims against some, but not al! public authorities must be brought in the Court of Claims. The question turns on the relationship between the body involved and the State. Easley v. N.Y.S. Thruway Authority, 1 N.Y.2d 37: 153 N.Y.S.2d 28 (1956). Further, subject matter jurisdiction often turns on the issues of fact. Troup v. McCart, 238 F.2d 289 (5th Cir. 1956). The issues of fact in the instant action are within the jurisdiction of the Supreme Court. Also, the Rec. ON Ap., P. 726 -35- nine defendants herein are united in interest by virtue of their conspiracy in this action. The claims are numerous and complex. To separate the claims against the Insurance Department would be unjust, wasteful, and a gross disservice to justice, to the issues, and to the plaintiff. The significance of conspiracy in New York law is for joining all defendants and holding them responsible for the acts of each other. Conner v. Bryce, Sup. 170 N.Y.S. 94, 95-96 (1918). Generally, an allegation of frau or collusion is sufficient for conspiracy. The above arguments as to the positions of Attorney Bohringer are not intended as complete arguments of all the misstatements and concealments in her papers. Alterations of Exhibits attached to said papers are described above on pp. 10-ll, herein. C. As to Defendant Rosenberg The Attorneys for Defendant Rosenberg, Bergadano, Zichello & Babchik, by Ann McIntyre, Esq., argue that plaintif failed to state a cause of action against Defendant Rosenberg. On the contrary, Defendant Rosenberg breached his agreement with Defendant Union to provide plaintiff with the pension in- formation she was seeking and to correct errors in her calcul tions (p. 467). Defendant Rosenberg did neither. He unilater ally withdrew his representation of plaintiff in an April 5, 1983, letter to plaintiff after seeing her only once on February 15, 1983. He concealed all pension information from plaintiff after examining her documentation which included the Report of Actuary (p. 346), the Retirement System's certifi , a reas REC. ON AP., Pp. 727 of plaintiff's service as 34 years of New York City Service (p. 347), the February 7, 1983, version of plaintiff's pension (p. 348), and the last Statement of Accounts received by plain- tiff to that date (p. 366). He did not give plaintiff a defin- itive statement regarding the statute of limitations. Thus, he concealed, from plaintiff, all pension information and her legal rights. He thereby joined the conspiracy to deprive plaintiff of her employment benefits, which he accomplished by concealing that plaintiff's pension and prior service had been fraudulently calculated. He breached his fiduciary duty to plaintiff by not revealing material information. He did not safeguard plaintiff as to equal protection of laws which is a Constitutional guaranty. Plaintiff was forced to discover pension information and her legal rights over a long period of time due to the obstructive tactics of defendants. After Defendant Rosenberg disengaged himself on April 5, i983, plaintiff could not retain an attorney even after consulting over 30 attorneys in her attempts to do so. The obstructive tactics were many and they continue to date and they constitute an abuse of plaintiff's time, person, and property, and a deprivation of plaintiff's Civil and due process rights. D. As to the City University Defendants (Board of Higher Educa- tion of the City of New York, City Univer- Sity of New York, and New York City Techni- cal College) The moving papers of the City University Defendants are riddled with errors, misstatements, and omissions. In Rec. ON Ap., P. 728 -37- her affidavit in opposition to City University Defendants' motion for dismissal, plaintiff responds to and refutes and documents as many of the misstatements as possible within the constraints of such a paper. See pp. 540-542, 479(a) - (1) of the Record on Appeal. The arguments therein are repeated a re-attested as though fully set forth herein. The attorney for the City University Defendants, Robert Abrams, Attorney General of the State of New York, by Sue Barnett Bohringer, A.A.G., shows no evidence that his office investigated plaintiff's claims of fraud; and, in addi- tion, his office used altered evidence to Support the argument that plaintiff's questions have been answered (p. 541, qf). Altered evidence was used by this attorney to support argument part of Defendant Insurance Department, which defendant is represented by the same attcrney (pp. 9-11 above). As to fraud, City University, on July 17, 1985, certified plaintiff's service at the College as having ended in 1977 instead of 1982 (5 years difference) (pp. 515-517). Thi communication from City University was the first time that plaintiff. discovered that her pension was a 29-year pension and not a 34-year pension. Defendants’ concealment prevented the discovery until July 17, 1985. Attorney Bohringer misstates the contents cf this fraudulent communication and ignores the fraud. Attorney Bohringer misstates the effects of the Melani decree and that it bars plaintiff's actions which it clearly does not (p. 512, QIVC). The Personnel Office of plaintiff's College sent a letter to the Retirement System in 1968 in which plaintiff's date of promotion to assistant professor was staté Rec. ON Ap., P. 729 «38 as five years later than it actually took place. The College apparently misinformed the Pension System about plaintiff's membership in a retirement system for the period 1951-1953, Since the Retirement System shows no membership for that period (p. 551); plaintiff provided proof of membership (p. 374); Dean Bronstein of Defendant College provided an altered letter as to this; and the defendants and the Courts ignore this fraud. The College and the Retirement System are concealing all the causes of action tin plaintiff's records by refusing to give her a copy of them. Clerks at the Retirement System have informed plaintiff that she has gaps in service which is untrue but they will not allow plaintiff to see the records which show this. The College misstated plaintiff's service throughout the years which misstatements were not known by plaintiff. The College prevented plaintiff's purchase of one year of private hool teaching and this was done discriminatorily and fraudu- lently. The College has obviously supplied the information to the Retirement System which fraudulently established plaintiff's service as 29 years instead of 34 years. This is shown clearly in City University's 29-year certification of service. The Attorney for City University Defendants ignores the fraud there1§ (p. 497, 8). The above arguments as to the positions of the City University attorneys are not intended as complete argu- ments of all the misstatements made in their papers. The conspiracy, concealments, and fraud continue as are evidenced by the moving papers of said parties. Rec. ON Ap., P. 730 -39- E. As to Defendant Professional Staff Congress/CUNY (Union) In the moving papers, D. Nicholas Russo, Legal Director and Attorney for Defendant Union, argues that plain- cists “suapicions regarding her pension allotment" are unfounded (p. 590) and that plaintiff "maintains in the instant action (that the Retirement System) miscalculated her pension" (p. 589). Attorney Russo ascribes the "unfounded" argument to plaintiff when the situation indicates the reverse. It is unbelievable that this Attorney, as all the other attorneys and the Courts herein, can make such statements without even a hint as to the correct amount of the pension, how it should have been calculated, the Pension Law which is the source of the formula, and any proof. The same applies to the crediting of prior service; not even a hint as to how it should have been charged and credited, the Pension Law which is the source of such crediting, and any proof. Plaintiff does not maintain that her pension was mis- calculated; plaintiff maintains that it was discriminatorily and fraudulently calculated. And, plaintiff documents this. Ths attorney for the Union goes on to say that Ms. Beryl Weinberg. the Union Pension Officer, provided plaintiff with the same consultation that she had provided to "other bargaining unit members" (p. 589). Ms. Weinberg used a form to give the appear- ance of so doing. However, in reality the form was inapplicable to plaintiff since it used the B20 percentages and it was obso- lete. Ms. Weinberg did not follow the formuia thereon for that reason. Further, it is interesting to note that this was the first version of her pension that plaintiff received and the REC. ON Ap., P. 731 -40- amount of the “normal pension" thereon was calculated as amountin to 73%, which is the percentage that the Retirement System awarded as its pension (p. 608). In a Union publication, the amount of the pension for City University faculty is stated as 2%% for each year of service, which is correct for members with service under 30 years. Using 25% times plaintiff's 34 years does not equal the pension amount plaintiff was awarded. In addition, plaintiff's service was reduced to 29 years to avoid applying the 30-year retirement allowance. Ms. Weinberg did not use the correct pension formula for plaintiff and did not reveal the rules for the crediting of prior service. [In addi- tion, in her affidavit in support of the motion to dismiss, Ms. Weinberg states that she did not "discuss the 30-year rule with her, as I had likewise not discussed with her other irrelevancies" (p. 582, 910). Does Ms. Weinberg consider using 29 years instead of 34 years for the calculation an irrelevancy: Does she consider not using the 30-year retirement allowance in plaintiff's case an irrelevancy? Does she consider not informi plaintiff, who has 35 years of service with a year of private- school teaching, that there is a 35-year retirement allowance a irrelevancy? All of this was discriminatory and fraudulent the part of the Union. As to retaining legal counsel, Ms. Weinberg states i her affidavit that she "sent plaintiff to outside counsel NOT because I believed she had a meritorious claim but after it - came obvious to me that plaintiff would never be satisf wi my answers or those provided by the pension system (x 5981, 48 ail a REC. ON AP., P. 732 The letter she sent to plaintiff informing her of the attorney retained by the Union disproves this (p. 611); Rosenberg's letter disengaging himself disproves this Defendant (p. Ms. Weinberg informed plaintiff that she would retain an ney to assist in these matters after viewing the Report of g i Actuary, service, papers. The Union has been abusive went unanswered; dismantled its library to block plaintiff from gazning any to plaintiff sion information and instructed her to go to a such information. minatorily defendants to deprive plaintiff attorney for the Union, in his deal with any of the pension fa statute to bar this action. The ~ +} Ipafoanada - Aine _——o ~ other defendants discriminatori - _ , c 1 a +r a a — = hoe han a mh, piaintifl ner benefits. ie’ r e } + bh rn +} a, actions. 4 L Cuil - sic y 5 de we a D ” not + ean al +hic a + VLONSTICUTIONaAL 1 L225 Case, § me 4 yy ls - = y ~ nati - na OL app y . ALSCIdL ific 4 Ana Tho her IrcyiImenteac -" 4 S IU — A4GQUIMCTILS A ~ + A AQrne r) nen ) —“inae lor attorney ana pensi1o COUNSeCLOL 4 r mano ~ + 77 Hho ~ - + ™ mec > } _ c " “ ents OL 244 THE isstat Oo rr) and fraudulently and in rh on her p I ann ranau and _ and r —— , L & Uudil —— ll Se + i tients aD Wed ts — ¢ ud. = Li1iCc —_ ‘ Sisthedidmuae NVLVW1iMG All of these actions were ia ™ Comm writ Wak no n de ~1INY UY rR nN 4 . 7 + L = == A 2 17T2]2 rue +} y ‘ - pi AVA UU rr P be ; ; * , + ‘ ~~ wo ; , >t * Ahhh GAwa y _+ y > | oo Rec. On Ap., p. 736 " oF 7 (2, i ‘ 0 ‘ 4 l ‘ c . ’ ) / 4 l f +4 4 ‘ ‘ i) t J ‘ r nr ‘a C ri rl > os ¢ ¢ ~ - ‘ - 2 c c 7 , f4 ‘ . * } j c- } f , P - : - > G ‘ c v 4 O ‘ rq + 4 ) . j 4 " 4 48 | ) / 4 ; x = ‘e; > C > ‘ ne 7 4 j Ww) W) . ¢ U : ( > ad . . , ' e4 + t rt 18) } +4 4 ~ t . > “ 4 ‘ 4 \ i c — = ha ) ‘ > = t : +4 . } > : ‘ ‘ rt : 4 a] +4 iJ . | x 4 - 4 4 4 ~~ ea f j oO. TC ry + — v wt — 4 ail ~ > c QO c 4 . j ‘ ' F \ ‘ : 4 4 19) ro ri f > 4 1 ?. ‘ fo ‘ [ c Ly > Ae v rf rd Ww co 1 er l {2 red hy QO h4 4 4 ‘ ‘ ‘ ‘ Ee / j >) _— & c Ly ey m oO f = ty f t ; v ! 4 4 + i se. ° rs \ + . 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" rw Ys v = he f cS ™N ) C l cc 1 > : Q C l 0 +4 1 - ‘ O W) se} Ldy ‘ ( re = - ue) q v 4 48) QO, = 4 cal . 4 0 4 4 4 4 m4 4 Ly Le) CO rs) f Ly ( c +4 c c f 4 2 VY) 48) ‘ © s ) eo, > c ) + . i) 1 ej ~ > ’ ~ = - = 4 ~4 4 @ | cS +? } cS Y = 8 er € 9) i = / io Y) C ‘ 0 m ‘x EY YW) ‘ a] ne} - 4 4J Yo = 4 - r4 - ) 4 ‘ 0 a ‘ a ; ~ c re) 7 +4 rj ss @ | ol ie) ba — l +4 t 0 ‘ 0 49) 4 Sy G ( GS rf +4 G ™N oF W) l cq = +4 ’ C — + ‘ - °) 4) nr C = ' et ° = 1) + ©) W) c ' +) et it ' Oo 4 oa u v4 ‘ oO QO = S re c = 4 + aml + J ‘ rs 4 v © ha c C . C 1 4 l . io - = ( > ‘ - +4 c 4 , ( qd 44 r4 4 1) @ Ss ct v " @ ad —————————————— 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 -~ 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 WG "J a4 ; Go @/) Ol] 41M! Ov O . 7) ba elise ] eI U & wos wWiDI1O ws eA > = cod wIGIO 1D) OLX ” © a t 092 Olv > c ba 4 4 4 m © S4/ Cl Cl4é) Fi ai oo > Q, - m0 wa @/ O} 41 @ Ul>+ J wes am O NU IUOILZI OIC = Oo J wv eo civ OV a) = © . GS U ence ciod ] + @li hia 4 no «4 ) Mu b' OOLMIM-4 Oz Ww) GC ” fa, i) O @ OM) Di wi Wie] © r =~ Oo ” ” Mm #4 #1 OID] O}] OF CO] CIs J ” a oY O #2 W MIMI >> Ol] O 0 t) fi] E i, i% OY @ wv 4 S ha 4 . vy 0 tae ® - &) wa 4 Zz. U 2 a) OY ov . v G i, x bh G re W) uM @ Nm Mu ome a Oo ha ea » & Q Rec. on Ap... P. 765 . ee . : . .. ’ >» - - 7 7 . 7 ° . ~ _— — - : ., wrwa ~ = oS = * -_ — we « >. . er . ‘od . " - -“-* Z = . % —_ . ia ; . ~ + ee » * .~ es . —_——_ ha * hs ¢ a - —— : . ‘ -~*+- ; . : : > 7 “ : “> 7" - . ~~ 2ea408a ¥ : s « . . , , . . . . : : --* ~anm © - *ha& : " ‘ e > . | . =~ . ._2 7 ’ } li : : . . . ‘ " . : ’ = : : ‘ ’ ” . ‘ ‘ . " 4 . . —-— 7. .@ss . 1/) : , : ; ° > = r= a“ > € | —_ ; = = : | : ; : ‘ yr « ‘ , } : . 7 - - > _* . ~_ — ae ne : } . : ‘ ; Ce . . -~* . . —" . . , ° _ _* . - ~~“ © -_ . ; . - ; 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 * 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 —[—[—[_—[_—[_$_ [_ >_> _>_>_>_>—————— 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 » Kye ay L€¢ WY UL Rec. ON Ap., P. 795 POINT II PLAINTIFF FAILS TO STATE A CAUSE OF ACTION AGAINST DEFENDANT PSC s black letter labor law that a union owes a duty 2presentation to its bargaining unit members and exists by virtue of the union's exclusive repre- ) rh ct J nose employees. Substantively, the duty applies union’s negotiation of new contract terms and to its ¢ ( xisting contract terms. It is a duty, however, t W) U + 2) | 1) rh 49) aI 1) J 0 @ ct O nly by n the employer. For the union lely to negotiate about and to enforce agreements with egarding terms and conditions of employment. he public sector involving employees of public employ- s the City University of New York by virtue of §6201 New York State Education Law), that which is \ off limits to the parties is sometimes set law. Pertinent to th instant case is §470 of the New State Retirement and Social Security Law, which prohibited mployers from negotiating about retirement benefits with employee unions for a defined period, including the levant to this case. This proscription included period between plaintiff's visit to PSC's Ms. Weinberg, h occurred prior to plaintiff's retirement, and through hevor beyo the time when defendant PSC retained outside counsel, Rec. ON Ap., P. 796 defendant Rosenberg, to examine the merits of plaintiff's discontent over the amount of her pension entitlement. In any event, the New York City Teachers' Retirement System was a separate, legally constituted entity (established pursuant to Title B of Chapter 20 of the New York City Adminis- trative Code); and since plaintiff's employer, CUNY, and union, PSC, were prohibited from negotiating about pensions, and since defendant PSC had neither legal authority nor control over any of the actions of the pension system, the defendant PSC owed ‘no duty to plaintiff regarding any allegations of miscalcula- tion, which is the underlying gravamen of her complaint. Nor did the union play any part in the actions taken by the pension system vis-a-vis plaintiff. Therefore, since defendant PSC's fair representation duty to plaintiff flowed only in the direction of the employer-univer- Sity, regarding the terms of their collective bargaining agreement and since defendant PSC played no role in the pension system's allocation of plaintiff's retirement benefit, plaintiff has asserted no viable action against defendant PSC, regarding possible miscalculations of pension entitlements made by the independent public retirement system, TRS. Accordingly, plaintiff has failed to state a viable claim against the defen- dant-union, PSC. Rec. ON Ap., P. 797 POINT III SUMMARY JUDGMENT SHOULD BE GRANTED TO DEFENDANT PSC Even if defendant PSC owed a duty to plaintiff regarding the latter's allegation of a miscalculation of her pension en- titlement made by the separate public pension system, then defendant PSC discharged that duty by retaining outside counsel to evaluate and pursue, if appropriate, the merits of plaintiff's dissatisfaction with the amount of her pension entitlement. If the lawfirm or lawyer-defendant thereof committed any negligence or malpractice -- not an allegation asserted by this defendant -- defendant PSC is not responsible as a matter of law because the said lawfirm and lawyer were not agents or employees of the defendant PSC but rather served in the nature of an inde- pendent contractor. Therefore, since defendant PSC went above and beyond its duty and retained outside legal counsel for plaintiff and since defendant PSC could not be held culpable as a matter of law for any negligent act of said outside counsel, the relief re- quested, summary judgment, should be granted in favor of de- fendant PSC. af Rec. on Ap., P. 198 CONCLUSION For the foregoing reasons, the appeal of plaintiff-appell=- ant Alice Clissuras should be denied in all respects, with costs and disbursements granted to defendant-respondent Professional Staff Congress/CUNY. Respectfully Submitted, D. Nicholas Russo Attorney and Director of Legal Affairs of Defendant Professional Staff Congress/CUNY 25 West 43rd Street New York, New York 10036 (212) 354-1252 Rec. ON Ap., P. 799 PLAINTIFF-APPELLANT'S REPLY BRIEF To be aceelik be TO STATE. UNION ATTORNEY. AND gate Uae UNION DEFENDANTS-RESPONDENTS 66 Minutes Requested (pp. 799-817) 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 TECHNICAnL COLLEGE, PROFESSIONAL STAFF CONGRESS/CUNY, DEPARTMENT OF INSURANCE OF THE STATE OF NEW YORK, and LEWIS ROSENBERG, Defendants- Respondents. PLAINTIFF-APPELLANT'S REPLY BRIEF ALICE CLISSURAS Plaintiff-Appellant, pro se P. OG. Box i750 Brooklyn, NY 11201 (718) 875-6171 KINGS COUNTY CLERK'S INDEX NO. 20522/85 Rec. ON Ap., Pp. 800 TABLE OF CONTENTS pes Be ee a a a a oe oe cr ce er ae ce © | PRELIMINARY STATEMENT ..... . oe RESPONSES TO BRIEFS A. COMBINED RESPONSES REPLYING TO ALL OF THE SUBMITTED BRIEFS OF DEFPENDANTS-RESPONDENTS .. . . « «© ‘© © © © © © @ « 2 B. RESPONSES REPLYING TO BRIEF OF DEFENDANTS~-RESPONDENTS CITY UNIVERSITY AND DEPARTMENT OF Sn ae es 6 oe 6 os 6 tlt le ltl hl hl hl hl hl tll 6 C. RESPONSES REPLYING TO BRIEF OF DEFENDANT-RESPONDENT PROFESSIONAL STAFF CONGRESS/CUNY (UNION). ....++++-«-e.- 410 D. RESPONSES REPLYING TO BRIEF OF DEFENDANT-RESPONDENT LEWIS ER eee ee oe ee ce ee a a a a ee ee Goer aeeee eS a ete ee a ce ee ee ee ew EB REC. On Ap., P. 801 TABLE OF AUTHORITIES CASES: Conner v. Bryce, Sup., 170 N.Y.S. 94 (1918). STATUTES: CPLR §3016(b). CPLR §321l(c). CPLR Article 78 Administrative Code of the City of New York, Chapter B20, §41.2 i» se « « «.% ‘ SS SSS Saa_a_a_Q_Q_QQG...SSae Rec. ON Ap., Pp. 802 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND DEPARTMENT ALICE CLISSURAS, Plaintiff-Appellant, : = -against- i CITY OF NEW YORK, TEACHERS’ RETIREMENT : BOARD OF THE CITY OF NEW YORK, TEACHERS' PLAINTIFF-APPELLANT'S RETIREMENT SYSTEM OF THE CITY OF NEW YORK,: REPLY BRIEF BOARD OF HIGHER EDUCATION OF THE CITY OF NEW YORK, CITY UNIVERSITY OF NEW YORK, : NEW YORK CITY TECHNICAL COLLEGE, j PROFESSIONAL STAFF CONGRESS/CUNY, : DEPARTMENT OF INSURANCE OF THE STATE OF NEW YORK, and LEWIS ROSENBERG, Defendants-Respondents.: PRELIMINARY STATEMENT Plaintiff-appellant submits this reply brief to respond to the brief of defendants-respondents City University (Board of Higher Education of the City of New York, City vaiversity of New York, and New York City Technical College) and Department of Insurance; the brief of defendant-respondent Professional Staff Congress/CUNY; and the brief of defendant- y respondent Lewis Rosenberg. The City 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) have not submitted a brief to date. Rec. ON Ap., Pp. 803 RESPONSES TO BRIEFS A. COMBINED RESPONSES REPLYING TO ALL OF THE SUBMITTED BRIEFS OF DEFENDANTS-RESPONDENTS 1. Plaintiff completed 34 years of service at defendant College. Her pension was calculated at the rate of 24% for 29 years. This is fraudulent. Plaintiff was falsely deprived of 5 service years and the 30-year entitlement. Plaintiff documented the fraud by showing 5 fraudulent versions of the pension given to her by the Pension System, City University, and the Union (Rec. on Ap., pp. 213-215, 501, 608). Not one defendant, in any paper to date, even mentions this claim. See all papers on the record. This constitutes concealment of cause of action. Not one attorney has addressed this claim. See all submitted briefs. Not one Court has addressed this claim. See all the orders below and the orders of the Federal Courts. The concealment of this cause of action by each and every defendant establishes a fact pattern for conspiracy to defraud since that is the only basis upon which total con- cealment of the cause of action could have occurred. This claim deprives plaintiff of her Constitu- tional right of egual protection of the laws on the bases of her sex and religion. Not one defendant has provided a non- discriminatory reason for a 29-year pension in the place and stead of a 34-year pension. The discrimination continues. aC Rec ON Ap., Pp. 804 Male and/or non-Christian teachers are receiving full pensions which include 30-year entitlements. . Not one defendant has provided any argument to dispute this claim; no one has provided any documentation to dispute this claim; no one has stated that the pension plan involved here is the Career Pension Plan and that the Pension Law providing for that Plan is being violated by the defend- ants. It is inconceivable to plaintiff that the discriminatory and fraudulent determination of her pension, which is the focal claim in her complaint is not even mentioned, considered, Or addressed by the defendants and that the Courts below improperly dismissed the complaint without even mentioning this claim. This claim involves issues of fact which are not subject to dismissal without trial. CPLR §321ll(c). The Courts below and the attorneys for defendants- respondents state that plaintiff's claims are barred by the four-month statute of limitations (plus in several instances a failure to establish cause of action). No one states the wrong from witch the cause of action accrues. The Courts do not state it and the attorneys do not state it. What is the wrong which starts the four-month statute? Is it the dis- crimination? Is it the fraud? Is it the conspiracy? Is it the concealment of the causes of action? Is it the deprivation of Constitutional rights? Is it the breach of contract? Is it the breach of fiduciary duty? The Courts and the attorneys do not address or respond to any of these claims, all of which are documented by plaintiff. The defendants have not shown REc. on Ap.. P. 805 that plaintiff knew that her 34 years of service were reduced to 29 for the pension at any time prior to July, 1985. Plain- tiff documents the time when she discovered this claim (Rec. on Ap., p. 570). Prior to July, 1985, defendants were pro- viding fraudulent versions of plaintiff's pension which were in the semblance of a 34-year pension. They also fraudulently stated that the pension plan was the plan contained in the Administrative Code of the City of New York, Chapter B20, §41.2. It was much later that plaintiff discovered that the plan was the Career Pension Plan. The Courts and the defend- ants do not respond tw this. Each and every defendant conceaied each and every cause of action. Plaintiff discovered each cause well after retirement. With the discovery of the 29-year factor in July, 1985, plaintiff was able to determine the method by which the amount of pension was calculated. She immediately brought this legal action, in August, 1985. The Courts below and the attorneys for defendants respondents do not state the wrong from which the four-month statute begins to run because it would then be patently clear that there is no four-month statute which applies to discri- mination, fraud, concealment, Constitutional guaranties, con- Spiracy, and breach, as to all of which claims the statute of limitations has not expired. Albeit it’ is inapplicable, the July, 1985, discovery is even within the four-month statute Defendants conspired to conceal the causes of action and to prevent plaintiff from retaining an attorney. They ee Rec. On Ap.. Pp. 806 -S- blocked plaintiff in all of her attempts to obtain information. They elongated the time throughout this matter by their con- cealments and conspiracy and then, their only defense is an inapplicable four-month statute which they do not ascribe to a particular wrong. Plaintiff is not an attorney and no one appears to take note of or to respond to the deprivation of her Constitu- tional right to legal representation. 2. As to her second cause of action, plaintiff com- pleted 34 years of service at defendant College. She was re- guired to purchase a portion of those years as “outside service." Despite the purchase, the years were not included in the calculation of plaintiff's pension. This second claim involves fraud, discrimination, con- cealment of causes of action, conspiracy, deprivation of Consti- tutional rights, and breach, for all of the peasone stated above for claim "1." This second claim took the same route as claim | "1" and the statements made above for claim “1" apply here to claim "2" as though they were fully repeated here. The law providing for service credit was violated. The defendants do not even mention this claim and the law governing service. The Courts below were also silent as to this claim. The two claims set forth above are substantial claims. The Courts and the defendants do not address the two claims in any manner. The defendants do not state the pension plan and do not state the rules for service. The Courts do not state Rec. On Ap.. Pp. 807 the causes of action and dismiss unspecified causes which include many issues of fact. Plaintiff sets forth the above two claims as illus- _ trations of the failure of the defendants-respondents to respon to counter, to dispute, and to provide documentation. They failed to do so as their briefs clearly show, not only for the above two claims but also for the many other claims in the complaint. The Courts below did not respond and did not requir: the defendants-respondents to make any response. B. RESPONSES REPLYING TO BRIEF OF DEFENDANTS-RESPONDENTS CITY UNIVERSITY AND DEPARTMENT OF INSURANCE The brief submitted by Robert Abrams, Attorney General of the State of New York, by Anne Ehrenkranz, A.A.G., attorney for defendants-respondents City University and Depart- ment of Insurance, is so fult of misstatements, errors, and misinterpretations that it is difficult to deal with all of them. l. At no point does Attorney Ehrenkranz respond to, counterargue, disprove, or provide any documentation in response to plaintiff's cleias of discriminatory and fraudulent calculation of pension and crediting of prior service. 2. At no time, in any paper, has plaintiff claimed that the Department of Insurance had a fiduciary responsibility to inform plaintiff about pension options before retirement anc encarta, a Rec. On Ap., Pp. 808 that it was negligent in not crediting plaintiff with New York State Pension years. As plaintiff's papers clearly show, plaintiff claims that the Department of Insurance was discri- minatory and fraudulent when in the final letter, dated June 7, 1985, it was stated that all errors had been corrected and adjustments had been made in the computation of plaintiff's benefits (Rec. on Ap., p. 405). Nowhere in all the corres- pondence with the Insurance Department is there an explana [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0694%3A3. Public record. Not legal advice.