New York State Court of Claims

New York State Court of Claims

D.A.G. FLOORS v. THE STATE OF NEW YORK, #2001-010-008, Claim No. 102463, Motion Nos. M-62038, CM-62500


Subcontractor can't recover under general contractor's contract with the State. Nor does the subcontractor have an unjust enrichment claim against the State.

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):
Terry Jane Ruderman
Claimant's attorney:
MITCHELL N. KAYBy: Eric S. Goldstein, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Michael Zeytoonian, Deputy Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 30, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-4 were read and considered by the Court on defendant's motion to dismiss and claimant's cross-motion for leave to file a late claim:
Defendant's Notice of Motion, Attorney's Supporting Affirmation and Exhibits...1

Claimant's Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibit.......................................................................................................................2

Reply Affirmation of Defendant's Attorney and Exhibits.......................................3

Reply Affirmation of Claimant's Attorney and Exhibits..........................................4
In December 1995, D.A.G. Floors, Inc. ("DAG") entered into a contract with Tower Building Maintenance Ltd. ("Tower") to repair, replace and/or construct tile floors in Building 11 at Sing Sing Correctional Facility ("Sing Sing"), which is owned and operated by defendant, State of New York. In March of 1998, DAG commenced an action in New York State Supreme Court against Tower and its surety (Reply of Defendant's Attorney, Ex. B). A judgment in the amount of $46,292.39, with interest, was signed on February 4, 1999, however DAG could not recover on the judgment because Tower went out of business and its surety was insolvent.

On March 2, 1999, DAG served the State with a Notice of Intention. The Notice of Intention states:

The time and place where such claim arose and the nature of the same are as follows: Between approximately February 1, 1996 and November 6, 1998, Claimant, pursuant to contract with TBM Ltd. d/b/a Tower Building Maintenance, performed the removal and installation of VCT tile at Sing Sing Correctional Facility, Ossining, New York, in accordance with Project #38976C, for which Claimant was not fully paid, leaving a balance due and owing of $46,209.39

(Defendant's Motion Papers, Ex. B). A claim was subsequently served upon defendant on May 16, 2000 and DAG's invoice, dated December 1, 1997, indicates Tower's unpaid balance of $46,290.39 (Defendant's Motion Papers, Ex. A).

The State brings the instant motion to dismiss on the ground that the claim is untimely because it was not commenced within six months of accrual, under Court of Claims Act § 10(4), arguing that the date of accrual is December 1, 1997, the date of DAG's invoice.

DAG opposes the motion and contends that it continued to perform work through November 6, 1998; therefore that is the date of accrual. Thus, the Notice of Intention, served on March 2, 1999, is timely and the claim, served within two years, is also timely. Alternatively, DAG cross-moves for leave to file a late claim against the State pursuant to Court of Claims Act § 10(6).

The State's Reply Affirmation seeks dismissal based upon DAG's lack of privity of contract with the State.

DAG's claim warrants dismissal on all grounds.
The State's Motion to Dismiss

Breach of Contract Claim
First, DAG, the subcontractor, cannot use its contract with Tower, the general contractor, as a valid basis for a claim against the State. "The general rule is a subcontractor cannot recover under his general contractor's contract with the State because of an absence of privity of contract between the subcontractor and the State" (Harrison & Burrowes v State of New York, 87 Misc 2d 637, 638). "It is well established that ‘a landowner who has had the benefit of a subcontractor's services, pursuant to a contractual obligation with a general contractor in a construction contract, is not liable for the work done by a subcontractor unless he has, in some way, agreed to pay therefor'" (Sybelle Carpet & Linoleum of Southhampton v East End Collaborative, 167 AD2d 535, 536, quoting Custer Bldrs. v Quaker Heritage, 41 AD2d 448, 451; see also, Outrigger Constr. Co. v Bank Leumi Trust Co. of N. Y., 240 AD2d 382, 396 [contract claim may not be asserted against a party with whom there is no privity]). Here, there is no proof that the State made any representations that it agreed to pay for DAG's services and DAG's breach of contract claim fails because there is no privity of contract between DAG and the State.
Unjust Enrichment Claim
Second, DAG cannot recover against the State on a claim of unjust enrichment. There was no evidence that the State either expressly consented to, or otherwise assumed, an obligation to pay DAG (see, Paladino, Inc. v Lucchese & Son Contr. Corp., 247 AD2d 515, 516). It is not enough to show that the State consented to the improvements or received a benefit from DAG's activities (see, Outrigger Constr. Co. v Bank Leumi Trust Co. of N. Y., supra at 384). DAG's sole remedy is against Tower and its surety and DAG has no claim against the State for unjust enrichment (see, Metropolitan Elec. Mfg. Co. v Herbert Constr. Co., 183 AD2d 758, 759).
Assuming, arguendo, that DAG had a viable contract claim or an unjust enrichment claim against the State, the claim would warrant dismissal because it was not timely commenced. DAG's conclusory and opposing affirmation that it continued to perform work through November 6, 1998 and the affidavit of DAG's president is not convincing, especially when compared to DAG's verified complaint in the Supreme Court action against Tower and its surety (Defendant's Reply, Ex. B). The verified complaint asserts at paragraph 11 that, "[o]n or about the 31st of May, 1997, plaintiff (DAG) completed performance of the Contract" (emphasis added). Paragraph 13 asserts that on June 25, 1997, Tower notified DAG by letter that the contract was terminated. Notably, the complaint was verified by DAG's president. In the instant case, the president's affidavit, submitted with the Reply of Claimant's Attorney, states that, while the president verified the complaint, she "did not realize that repair work had still continued well past May 1997 ‘completion date'" (Reply of Claimant's Attorney, Liepper Affidavit, ¶ 3). This sworn affidavit is contrary to the president's verification of the complaint; it is also vague and unsubstantiated. Notably, the Supreme Court judgment against DAG and its surety was signed on February 4, 1999 in the amount of $46,292.39, with interest from June 25, 1997, the date of accrual (Defendant's Reply, Ex. C). Thus, whether the claim accrued on May 31, 1997, June 25, 1997 or December 1, 1997, the March 2, 1999 Notice of Intention was untimely (Court of Claims Act § 10[4]). Accordingly, the claim was untimely.
Claimant's Cross-Motion/Late Claim Application
The determination of a motion for leave to file a late claim requires the Court to weigh, among other relevant considerations, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979).

This Court has considered all six of the aforenoted factors. DAG's purported excuse for its failure to timely commence an action against the State is that it "had no reason to believe it would be necessary" (Reply of Claimant's Attorney, Liepper Affidavit, ¶ 4). This is not a acceptable excuse (see, Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). It was within DAG's right and ability to simultaneously commence actions in the State Supreme Court and the Court of Claims and DAG should have done so if it believed it had any claim against the State.

While DAG may not be able to collect on its judgment against Tower and its surety, this does not outweigh the most significant factor, i.e., the appearance of merit. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). As set forth above, DAG does not have a viable contract claim nor an unjust enrichment claim against the State. Thus, the lack of merit of DAG's claim against the State weighs heavily in denying DAG's cross-motion for leave to file a late claim as there would be no basis in granting its application.

Defendant's motion to dismiss Claim No. 102463 is GRANTED and claimant's cross-motion for leave to file a late claim is DENIED.

January 30, 2001
White Plains, New York

Judge of the Court of Claims