New York State Court of Claims

New York State Court of Claims

GEM FLOORING v. THE STATE OF NEW YORK, #2001-016-204, Claim No. None, Motion No. M-63590


Late claim motion was denied; proposed claim asserted that property of claimant was flooded because of the state's negligence.

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):

Alan C. Marin
Claimant's attorney:
Fredrick P. Stern, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Anne C. Leahey, AAG
Third-party defendant's attorney:

Signature date:
November 27, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Gem Flooring, Inc. for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed claim, it is asserted that in connection with a "road widening project" undertaken by the state in Holbrook, New York, drainage facilities near claimant's warehouse were removed but not replaced. Thereafter, according to claimant, a rainstorm occurred on June 13, 1998, resulting in flooding damage to claimant's property located at the warehouse. In determining whether to grant this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first, second and third factors – whether the state had notice of the essential facts, whether the state had an opportunity to investigate and whether the state would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, claimant asserts that these factors have been satisfied "[s]ince the State was allegedly served with a notice of claim by [claimant's landlord] regarding this same incident . . ." Defendant points out that claimant attaches no such claim to its papers and states that a search of the state's records indicates that no claim was ever received from the landlord. In its reply papers, claimant submits a copy of a letter from the landlord to its tenants stating that "we have contacted . . . the New York Department of Transportation . . . in order to advise them of the subject damage and to file a formal claim . . ." but nothing has been submitted to indicate that such claim was in fact made. Defendant also argues that it will be prejudiced because claimant's delay resulted in its inability to provide its insurance carrier with a timely notice of claim, but no details have been provided. In any event, it has not been established that defendant was made aware of Gem Flooring's claim prior to this motion, which was filed nearly three years after the incident. I find that claimant has not satisfied these three factors of the Act.

As to an alternate remedy, claimant does not address this issue but, as set forth below, it appears that a claim would lie against the Town of Islip. As to excuse, claimant asserts that its landlord advised that a notice of claim had been filed on claimant's behalf when in fact claimant learned later that the landlord's claim did not in fact include claimant's damages. Claimant has cited no authority for the proposition that this is an excuse recognized under the Act.

The final factor to be considered is merit. The basis of Gem Flooring's claim here is the assertion that in a road widening project, drainage facilities were removed and not replaced. These allegations are made "[u]pon information and belief," while defendant has submitted the affidavit of Stanley Lechner, a civil engineer who is the Records Access Officer for Nassau and Suffolk Counties who states that he is familiar with the facts and circumstances surrounding this claim.

Lechner indicates that this was not a road widening project by the state, but rather a federally funded project by the Town of Islip to correct "continuous flooding problems." Lechner states that since federal funds were involved, the New York State Department of Transportation ("DOT") was required to provide engineering personnel to inspect the work and materials and to insure that all contract requirements were met. According to Lechner, this was the state's only involvement as the road in question was not a state road. Claimant points out that the DOT issued a June 5, 1998 letter stating that because of the project, there would be a traffic detour, but has submitted nothing else to infer state involvement in the project. Moreover, Lechner also states that contrary to claimant's assertion, existing drainage facilities were not removed prior to the flooding.

In short, we are left on one hand with claimant's assertion – made on information and belief – that in a state road widening project, drainage facilities were removed. This is the entire basis of claimant's theory of liability for the state. On the other hand, an engineer familiar with the project has indicated that this was a town project in which drainage facilities were not removed. Claimant thus falls short of the standard set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-63590 be denied.

November 27, 2001
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The following were reviewed: claimant's notice of motion with affidavit in support and proposed claim; claimant's memorandum of law in support; defendant's affirmation in opposition with exhibit A; defendant's memorandum of law in opposition; and claimant's reply affirmation with exhibits A and B.