New York State Court of Claims

New York State Court of Claims



Motion for late claim based upon alleged breach of contract is denied as Claimant relied upon Department of Transportation specifications, not Office of General Services specifications. There was no affidavit or verification from an individual with personal knowledge.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr
Claimant's attorney:
Cohen & Lombardo, P.C.
By: Robert R. Goods, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Cornelia Mogor, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 3, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for permission to file a late claim:

1, 2 Notice of Motion and Affidavit and Exhibits Annexed

3, 4, 5 Opposing Affidavits and Exhibits Annexed
  1. Reply Affidavit and Exhibits Annexed
Upon the foregoing papers, this motion is denied.

In this motion, Claimant seeks permission to file a late claim pursuant to §50-E of the General Municipal Law (sic) and Court of Claims Act §10, sounding in breach of contract. A proposed claim is appended to the moving papers.

The proposed Notice of Claim, signed only by Claimant's counsel, sounds like a notice of claim under the General Municipal Law, or a Notice of Intention to file a claim in this court, inasmuch as it asserts the intention to commence suit. Lest it be overlooked, Court of Claims Act §10(6) only permits remedial relief to serve and file a late claim (the Court of Claims does not utilize any pleading or document entitled ‘Notice of Claim') and there is no provision in the statute for a late notice of intention to file a claim.

Initially, I note that the General Municipal Law does not pertain to the State of New York.  More troubling to me in this application is the absence of a sworn statement by anyone with personal knowledge of the underlying facts herein. This is exacerbated by the submission of an unverified proposed claim (see Martin v State of New York, ______Misc 2d_____, 713 NYS 2d 831, 200 NY Misc. Lexis 399).

Nonetheless I will review the allegations here. Claimant made a bid on Contract Number PO53080 for Project Number 408 in the Village of Mount Morris for certain paving work in the summer of 1998. Claimant's counsel alleges that the New York State Department of Transportation thus did "order 25 (sic, should be 25,000) metric tons on Type 2F Top" as part of this bid acceptance. While Claimant purportedly estimated his bid upon the entire 25,000 metric tons, only 16,910.47 metric tons were actually used. Counsel asserts the Section 109-16 of the "Standard Specifications" allows an adjustment in the price whenever there is an underage of more than 25%, and thus seeks $68,000.00 using the average weighted bid.

Various demands and assertions for payment were made to the Department of Transportation (DOT), but each was denied in written correspondence from DOT, with the essential assertion that the contract only called for payment of the amount actually used, as opposed to the estimated amounts in the bid specifications. Claimant supplies, as Exhibit E, §109-16 of the Standard Specifications, Construction and Materials, Office of Engineering, January 2, 1990, New York State Department of Transportation (Addendum No. 1, adopted November 18, 1993), as the sole support for his proposed cause of action.

There are six factors enumerated in §10(6) of the Court of Claims Act, and I will address each. First, Claimant offers no excuse for its failure to have timely filed a claim. Of course, a party seeking the court's discretion need not meet all six factors in order to be successful (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979). Claimant's counsel avers that the various correspondences put the State on notice of the essential facts constituting the claim, thus concludes that the State had ample opportunity to investigate, and that no prejudice would enure to the Defendant were I to grant this application. No alternative remedy is addressed or seems available.

Counsel avers that the contract was due to expire on December 31, 1999, while the Defendant observes that the contract in question actually had a December 31, 1998 expiration date. I note that the Claimant's moving papers failed to include a copy of the contract in question, which becomes relevant and important inasmuch as Exhibit E, §109-16 (Addendum No. 1, adopted November 18, 1993), purportedly pertains to DOT contracts, while the Defendant suggests that the contract in question was developed by the Defendant's Office of General Services (OGS), not DOT, and that the specifications relied upon by Claimant do not pertain to contracts let by OGS. This contention is supported by the sworn affidavit of the Principal Claims Engineer with DOT. Indeed, in opposition to this application the Assistant Director of Purchasing for OGS supplies the Invitation for Bids (Exhibit 1) and Specification No. 710 (Exhibit 2), which, at Page 9 thereof, specifies that the quantities listed are estimated only. The Defendant also supplies as Exhibit 3 the Notice of Contract Award which once again references Specification No. 710. Most significantly, the Defendant's Assistant Director of Purchasing for OGS avers that there is no incorporation or reference to the DOT contract specifications which is the sole basis for this application. Thus the Defendant urges that this motion be denied as it fails to show the appearance of merit, arguably the most significant of the six factors listed in §10(6).

In response, Claimant's counsel avers that the Invitation for Bids incorporated acceptance of the "GENERAL SPECIFICATIONS (9/83) and AMENDMENTS THERETO", and that his client relied upon §109-16 of the "Standard Specifications", which he then assumed was incorporated. This is troubling, because the specification purportedly relied upon by Claimant (from the Office of Engineering of DOT) is dated January 2, 1990, contrasted with September, 1983, as related by the Invitation for Bids. Nothing before me demonstrates an implied or suggested reliance upon any contractual specifications other than those specified in the Invitation for Bids, to wit, Specification No. 710.

In an effort to show the involvement of DOT, Claimant then references a purchase order from the Defendant and an invoice from Claimant (Exhibits 1 & 2 to his response) which list DOT and not OGS. He also refers to correspondence appended to the moving papers which utilize DOT letterhead. However, that letter (Exhibit B) is in response to correspondence addressed by Claimant to an individual at DOT, and in fact, directed Claimant's attention to Specification No. 710, reiterating the Defendant's position that it was only liable for quantities used, rather than estimated. In sum, while it appears that DOT was involved, there is nothing before me which would lead a bidder to rely upon any contractual specifications other than those enumerated in the Invitation for Bids.

Regardless, counsel concludes that it is "readily apparent that the claimant had no other reason but to believe he was dealing directly with the [DOT] ..." and that the contract was governed by the standard specifications so enumerated. It is at this juncture that Claimant's counsel's logic escapes me. First, it nowhere appears in the invitation for bids, or any other contractual documents, that the specification upon which the proposed claim fundamentally and totally depends is referenced. The reference to Specification No. 710, and particularly Page 9 thereof, leaves no doubt that the contract shall be for quantities actually ordered. Despite Claimant's urging that there is a colorable difference of opinion as to what specifications applied, an applicant seeking the Court's discretion must come forward with something more substantial, and the Specification Reference on the face of the Invitation for Bids leaves no doubt as to the applicable specifications. Thus, on balance, I do not find that the proposed claim, or the supporting papers, demonstrate the appearance of meritoriousness, and it would be an exercise in futility to permit the late filing of a claim which does not bear the appearance of merit (Prusack v State of New York, 117 AD2d 729).

Accordingly, after reviewing the proposed claim and all the papers before me, and balancing the statutory factors, I decline to exercise my discretion on Claimant's behalf.

The motion is denied.

January 3, 2001
Rochester, New York

Judge of the Court of Claims