New York State Court of Claims

New York State Court of Claims

ADIRONDACK COMBUSTION v. THE STATE OF NEW YORK, #2003-015-373, Claim No. 107930, Motion No. M-67425


Claim for breach of an implied in fact contract dismissed as untimely where damages were ascertained in February 2002 and claim was not served until July 16, 2003. Court lacks jurisdiction to adjudicate the claim.

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):

Claimant’s attorney:
Edward Fassett, Jr., Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Cornelia Mogor, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 19, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction arising from the untimely service of the claim is granted. The instant claim seeks $373,746.02 in damages allegedly resulting from breach of a contract implied in fact arising on February 7, 2002 when the claimant provided emergency repair services to a high temperature water generator at the State University of New York at New Paltz (SUNY New Paltz). The generator was a major component of SUNY's heating system and the repair is alleged to have been necessitated by the failure of a controller manufactured and supplied by Hays-Cleveland, a division of Unicontrol, Inc. Thirteen months later claimant demanded payment for its services by invoice # 03-0376 dated March 28, 2003 which it served on the SUNY New Paltz Accounts Payable Office. SUNY New Paltz rejected the invoice because it failed to comply with the requirements of the New York State Prompt Payment law. The letter of Carol Woods dated April 11, 2003 by which the invoice was rejected advised claimant that an approvable invoice would be processed for payment when received. Claimant apparently chose not to resubmit an invoice containing the information outlined in Ms. Wood's letter but chose instead to commence the instant claim.

The defendant has moved to dismiss the claim on the ground that the claim was untimely served thereby depriving this Court of jurisdiction and on the further ground that it fails to state a cause of action in the absence of an express contract approved by the State Comptroller pursuant to State Finance Law § 112. Claimant opposed the motion.

Noticeably absent from claimant's opposition is an allegation that a formal contract for the emergency repair work at SUNY New Paltz in February 2002 was entered into by the parties or approved by the State Comptroller. Contrary to the defendant's[1] allegations, however, the absence of an express contract does not justify the claim's dismissal for failure to state a cause of action. Nor can it be determined on this record that the State is not a proper party defendant[2]. Both section 9(2) and section 10 (4) of the Court of Claims Act provide that actions may be commenced in this Court based upon breach of contract, express or implied, provided a claim is served and filed within six months of its accrual.

On the motion the defendant asserts that the instant claim accrued in early 2002 and that the service of the claim on July 16, 2003 occurred well outside the six month commencement period prescribed by Court of Claims Act § 10 (4) depriving the Court of jurisdiction.

Unfortunately, claimant failed to address the timeliness issue in its opposing papers. Nevertheless, since compliance with the service and filing requirements of section 10 of the Court of Claims Act are jurisdictional (Philippe v State of New York, 248 AD2d 827; Collado v State of New York, 207 AD2d 936) the Court will address this issue first.

As previously noted, a claim for breach of an express or implied contract must be filed within six months of accrual. It is well established that a claim accrues when damages accrue (Bronxville Palmer v State of New York, 36 AD2d 647; Waterman v State of New York, 19 AD2d 264, affd 17 NY2d 613, Edlux Construction Corp. v State of New York, 252 App Div 373, affd 277 NY 635) or, stated differently, when damages are ascertainable (Inter-Power of N.Y. v State of New York, 230 AD2d 405; Flushing Nat'l. Bank v State of New York, 210 AD2d 294; New York Blood Center v State of New York, 114 Misc 2d 390).

Reported Court of Claims decisions addressing the issue of accrual in contract cases are, however, divided on when such a claim accrues. In Long Island Lighting v State of New York, 89 Misc 2d 816 involving the forced removal of lighting fixtures from the Wantagh State Parkway, Judge Mangum of this Court stated at p. 819:
It was the State's rejection of the demand for payment in June, 1976, though premised on the July, 1975 agreement, that gave rise to the cause of action for breach of contract and was the catalyst for commencing the six- month period for filing a nonpayment claim, vis-a-vis, accrual of damages.
That holding was expressly rejected by another judge of this Court in Glassman v Letchworth Vil. Developmental Center, 104 Misc 2d 755. In that case Judge Hanifin declined to follow Judge Mangum's determination that the State's rejection of the claimant's demand triggered the claim's accrual. In Glassman the Court at p. 758 stated:
If a potential claimant, whose damages are ascertainable, can defer the accrual date of his contract claim, or rather precipitate the accrual date, by the simple expedient of writing a demand letter, then the time-limiting provisions of subdivision 4 of section 10 of the Court of Claims Act become meaningless.

* * *

. . . The time limitation of subdivision 4 of section 10 is triggered when 'damages are ascertainable' (Edwards v State of New York, 95 Misc 2d 516, 520-521). Stated in another way, the amount payable pursuant to a contract with the State becomes an item of damage and a claim accrues therefor, when the amount is calculable and there is no contractual or statutory provision for a later payment date. If there is provision for a later payment date, either express or reasonably implied, the claim accrues on that later date despite the fact that the amount was calculable earlier (cf. City of New York v State of New York, 40 NY2d 659).
Here claimant has not asserted any contractual provision for a later payment and therefore it appears to this Court that under the holding in Glassman, which this Court favors, the claim accrued on or about February 2002 when the claimant's services were fully performed and damages were reasonably ascertainable. Service of the claim upon the Attorney General on July 16, 2003 was therefore untimely since it occurred well outside the six month period prescribed by Court of Claims Act § 10 (4) for service of a contract claim.
Claimant's failure to act within the time provided for service and filing of a claim in Court of Claims Act section 10 (4) was a fatal error depriving the Court of jurisdiction to entertain the claim. The claim is therefore dismissed (see, Alston v State of New York, 281 AD2d 741; Chapman v State of New York, 261 AD2d 814).

December 19, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 22, 2003;
  2. Affidavit of Arnold Bernardini sworn to September 19, 2003;
  3. Affirmation of Cornelia Mogor dated September 22, 2003 with exhibit;
  4. Affirmation of Edward Fassett, Jr. dated October 28, 2003;
  5. Affidavit of William Park sworn to October 28, 2003;
  6. Affirmation of Cornelia Mogor dated November 3, 2003.

[1].Although defense counsel repeatedly refers to the two originally named defendants the caption of this claim was amended by order of the court dated September 11, 2003 to name the State of New York as the sole defendant. References to defendant herein will therefore be made in the singular.
[2].Defense counsel suggests an action against the State University Construction Fund in Supreme Court rather than against SUNY in this Court.