New York State Court of Claims

New York State Court of Claims

E. W. TOMPKINS v. THE STATE OF NEW YORK, #2002-015-259, Claim No. 103214, Motion No. M-64749


Synopsis


Court granted unopposed motion by State to dismiss claim seeking retainage and interest (11 years) on construction contract settled by stipulation in 1999.

Case Information

UID:
2002-015-259
Claimant(s):
E. W. TOMPKINS COMPANY, INC.
Claimant short name:
E. W. TOMPKINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103214
Motion number(s):
M-64749
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Carter, Conboy, Case, Blackmore,
Maloney & Laird, P.C.By: James A. Resila, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Cornelia Mogor, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 4, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The defendant's motion for summary judgment pursuant to CPLR 3212 seeking an order dismissing the instant claim for lack of jurisdiction, untimeliness, waiver, release and failure to state a cause of action was unopposed by counsel and is hereby granted. The instant claim filed October 13, 2000 sought to recover the sum of $27,868.60 ($10,800.00 in alleged retainage under the contract plus 11 years of interest at 9% per annum) on a certain contract with the defendant for HVAC, plumbing and electrical work in connection with the construction of a new maximum security correctional facility at Woodbourne, New York. The contract work began in 1983 and was completed in 1985. A claim on the contract was commenced against the defendant in 1988 and was tried before the Honorable Donald J. Corbett in 1997. Judge Corbett awarded claimant $337,069 plus interest and the State appealed from the judgment. The parties thereafter entered into a stipulation of settlement dated June 16, 1999 in the amount of $258,000.00 plus interest which the State maintained was inclusive of all amounts owed to claimant, including the amounts sought in the instant claim.

By letter dated March 18, 2002 claimant's attorneys advised the Court that the claimant "cannot file sufficient opposition to warrant the denial of summary judgment."

The claim is untimely pursuant to Court of Claims Act § 10 (4) since it was not commenced within six months of accrual, i.e., the date when damages were reasonably ascertainable (Inter-Power of N.Y. v State of New York, 230 AD2d 405). Under the strict construction to be afforded the time and service provisions of the Court of Claims Act the Court is without jurisdiction to adjudicate the claim (Lichtenstein v State of New York, 93 NY2d 911, Dreger v New York State Thruway Auth., 81 NY2d 721). Failure to file a claim within the time permitted in section 10 of the Court of Claims Act is a fatal jurisdictional defect which entitles the State to dismissal of the claim (Philippe v State of New York, 248 AD2d 827; Collado v State of New York, 207 AD2d 936).

Accordingly, the instant motion is granted and the claim is dismissed.


June 4, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated February 19, 2002;
  2. Affidavit of Robert Kainz sworn to February 19, 2002;
  3. Letter dated March 18, 2002 from James Resila, Esquire.