New York State Court of Claims

New York State Court of Claims

FATONE v. THE STATE OF NEW YORK, #2002-032-013, Claim No. N/A, Motion No. M-65718


Synopsis


Claimant's motion for permission to late file a claim is denied as unnecessary because claimant's already-existing claim is for a continuous period of flooding and accrued on the date that defendant's activities which caused the flooding ceased.

Case Information

UID:
2002-032-013
Claimant(s):
THE FATONE FAMILY HOLDINGS, L.P. The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Claimant short name:
FATONE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-65718
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Herzog, Engstrom & Koplovitz, P.C.By: Seth D. Finkell, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Phelan, Burke & Scolamiero, LLPKevin P. Burke, Esq., Of Counsel
Third-party defendant's attorney:

Signature date:
November 14, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This motion for permission to file an untimely claim, pursuant to Court of Claims Act § 10 (6), is related to an existing claim, Claim No. 106571, which was filed on September 3, 2002.[1] Both the claim and this motion relate to flood damage to real property that is located in Troy, New York, and owned by claimant corporation.

In Claim No. 106571, claimant alleges that between April 28 and August 3, 2002, the basement of a building on this property was flooded; that the flooding was "continuing" (claim, ¶ 5); and that the flooding was caused by water being channeled onto the property from construction work performed nearby by August Bohl Contracting Co. (Bohl), pursuant to a contract with the State Department of Transportation (DOT) (id., ¶¶ 4, 7).

The claim recites that claimant first attempted to obtain reimbursement for the flood damage from the property's insurer. The insurer declined coverage on July 26, 2002, because the engineering firm it had hired to investigate the matter allegedly determined that the flooding was caused by Bohl's activity. In its answer, the State of New York raised as an affirmative defense the asserted untimeliness of any loss occurring more than ninety days prior to the date on which the claim was filed (answer and answer to amended claim, ¶ FIFTH).

The proposed claim that is the subject of this motion alleges the same underlying facts as Claim No. 106571, and it seeks compensation for damage "occurring between April 28, 2002 and May 27, 2002 which is the period of time that is outside the 90 day restriction described in the Court of Claims Act, subdivision 3 of section 10" (proposed claim, ¶ 6). In other words, instead of moving to strike defendant's affirmative defense of partial untimeliness, claimant has moved for permission to late file with respect to the earlier period of loss.

It is well accepted that a claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable (see, Augat v State of New York, 244 AD2d 835, 836, lv denied 91 NY2d 814; Inter-Power of N.Y. v State of New York, 230 AD2d 405, 408; White Plains Parking Auth. v State of New York, 180 AD2d 729, 730). Where the injury is damage to a growing crop, the claim does not accrue until the end of the crop season, and where the injury results from flooding or erosion, damages cannot be ascertained until the full extent of the impact can be known (Bantelman v State of New York, 30 Misc 2d 698, 702; Williams v State of New York, 106 Misc 19). Consequently, this motion was unnecessary because claimant's cause of action for damages that occurred during the entire three and a half month period from late April to early August did not accrue until the extent of the damages could be ascertained when the flooding ended in August. Consequently, Claim No. 106571, which was filed within ninety days, encompasses all injury that occurred from April 28, 2002.

Claimant's motion is denied as unnecessary, and in the interest of judicial economy, the Court sua sponte strikes defendant's first affirmative defense, as set forth in the answer and answer to amended claim.

November 14, 2002
Albany, New York
HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant's motion for permission to file an untimely claim:

  1. Notice of Motion and Supporting Affirmation of Seth D. Finkell, Esq., with annexed proposed claim
  1. Affirmation in Opposition of Belinda A. Wagner, AAG[2]
  1. Reply Affirmation of Seth D. Finkell, Esq.

Filed papers: Claim No. 106571; Answer; Amended Claim; Answer to Amended Claim


[1] An amended claim was filed September 19, 2002.
[2] Defendant is now represented by the law offices of Phelan, Burke and Scolamiero, pursuant to a notice of appearance filed November 6, 2002. This firm filed its own answer on October 8, 2002. This answer sets forth different affirmative defenses and does not allege untimeliness.