New York State Court of Claims

New York State Court of Claims

KAUFMAN v. THE STATE OF NEW YORK, #2003-029-317, Claim No. 106941, Motion No. M-66900


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:
Kucker & Bruh, LLPBy: John M. Churneftsky, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 1, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant, State of New York, seeks dismissal of the amended claim pursuant to CPLR 3211 (a) (7) and Court of Claims Act § 10 and § 11 on the basis that the claim fails to state a cause of action and is untimely.

Claimant, Melvyn Kaufman, is the principal officer and/or managing member of 151617 LLC and 1819 LLC[1], the entities which own and maintain 1320 and 1330 Flagler Drive, Mamaroneck, New York (see Kaufman Affidavit in Opposition to Motion, Paragraph 1). The amended claim, served upon the Attorney General and filed with the Clerk of the Court on March 5, 2003, consists of 33 pages, 105 paragraphs and has 54 exhibits attached to it. The amended claim asserts six causes of action.

Previously, on November 15, 2002, claimants served a notice of intention to file a claim upon the Attorney General (see Exhibit A attached to Motion). A claim was served upon the Attorney General on November 18, 2002 (see Exhibit B attached to Motion) and filed with the Clerk of the Court on the same date.

The amended claim asserts:
"3) The State of New York, by acting and/or failing to act through certain of its officers and agents, have caused the irreversible destruction of the ecosystem which had previously existed at and on Claimants' waterfront properties where he has resided for forty five (45) years thereby causing substantial damage to Claimants' properties.

4) The property damages and injuries for which this claim is made were discovered on or about October 16, 2002 at 1320 and 1330 Flagler Drive, Mamaroneck, New York upon receiving a report from Dr. J. Evan Ward from the University of Connecticut Department of Marine Services. Annexed hereto as Exhibit "BBB" is a true and accurate copy of the report prepared by Dr. J. Evan Ward.

5) Specifically, the area north of the concrete block, between the seawall and the rock breakwater (Claimants' properties) have undergone dramatic and devastating changes. This area has been changed from a rocky and sandy intertidal ecological habitat dominated by epifaunal organisms to an intertidal mud flat dominated by infaunal organisms. If succession is permitted to continue the salt marsh grasses will continue to propagate and will convert the entire area into a salt marsh habitat representing a total destruction of the previously existing ecological habitat. Additionally, the ecological destruction has spread so far so as to impact areas of Claimants' properties not confined by the sea wall and breakwater."

From reading the amended claim, it appears that the claim had its genesis from a December 1992 storm which destroyed the "entire column support system, pier deck and hand rail of an elevated wood gangway leading to a stone breakwater" located on the property of claimants' next door neighbor, in a tidal wetlands area (see Amended Claim, Paragraph 6). The storm allegedly left only the remains of the stone and concrete base and wooden stanchions (id.). Subsequent to the storm, the then owner of the property applied for and received permits from the Village of Mamaroneck, the New York State Department of Environmental Conservation (hereinafter DEC), the Department of State Office of Coastal Management and the Department of the Army, New York Corp of Engineers which authorized reconstruction of the elevated wood gangway (id. Paragraph 7). The claimants allege that all the permits expired, the work was not done and the owner sold the property. In April 1999 the new owners, the Kehlers, submitted an application to the Village for a building permit to repair an existing dock (id. Paragraphs 8-11). The claim further alleges that the new concrete block appears to have been created as follows:
"a) A wood frame was constructed which rested on top of the remains of the 1992 stone and concrete base, a frame which was markedly higher than the remains of the preexisting base; and

b) The wood frame was then filled in with rubble and by pouring concrete. This construction work resulted in a new concrete block being created which was completely solid and markedly higher than the preexisting stone and concrete base. See photograph annexed hereto as Exhibit ‘AAA'" (Amended Claim, Paragraph 11 (a) and [b]).

It is further asserted that the Kehlers did not notify the Federal, State or local authorities, or Mr. Kaufman, of their plan to replace the wooden gangway with a solid concrete block. By letter dated May 12, 1999 Mr. Kaufman notified DEC of the presence of the concrete block (id. Paragraph 14). On June 11, 1999 a DEC employee came to the site and investigated Mr. Kaufman's complaint and two violations of the Environmental Conservation Law were noted (see Amended Claim, Paragraph 19 and Exhibit I attached thereto). By letter dated November 29, 1999 DEC advised Mr. Kaufman that following an investigation, DEC had issued a written warning to the Kehlers for doing work without proper authorization from DEC (id. Paragraph 33 and Exhibit U attached thereto). "Outraged with only a warning being issued" Mr. Kaufman sent two letters to DEC Commissioner Cahill in December 1999 requesting that additional action be taken (id. Paragraph 34). In February and April 2000 Commissioner Cahill wrote to Mr. Kaufman and advised him that he had reviewed the matter and determined that DEC's determination was appropriate and reasonable (id. Paragraphs 36 and 41).

By letter dated May 2, 2000 Mr. Kaufman's wife[2] advised DEC that the concrete block had affected tidal wetlands, obstructed and altered the movement of water flow, created a new sand beach in front of her property and caused sea grass in the area around the concrete block to disappear (Exhibit DD attached to Amended Claim). In response, on May 31, 2000 the DEC Region 3 Director wrote to Mrs. Kaufman advising that after reviewing the information she provided to DEC and another site visit, DEC reiterated its conclusion "that no additional loss of tidal wetland habitat occurred as a result of this project" (Exhibit EE attached to Amended Claim).

By letter dated April 30, 2001 Ms. Atwood forwarded to DEC a copy of a report prepared by a Professional Engineer of the VSA Group which detailed the loss and damage to the marshland and migration of the wetlands (id. Paragraph 45 and Exhibit FF annexed thereto). By letter dated May 22, 2001 the new DEC Commissioner[3] advised Ms. Atwood that she had reviewed the submitted materials and was satisfied that the steps taken by her staff were reasonable and appropriate[4] (id. Paragraph 46 and Exhibit GG attached thereto).

By letter dated August 22, 2001 to DEC's Region 3 Director, Ms. Atwood demanded that the concrete block "offending structure [be] removed" which she asserts DEC should have required in 1999 (Exhibit OO attached to Amended Claim). By letter dated August 31, 2001 Commissioner Crotty, yet again, advised Ms. Atwood that DEC's actions were reasonable and appropriate (Amended Claim, Paragraph 55 and Exhibit PP attached thereto).

The amended claim asserts six causes of action. The first asserts that the State was negligent and grossly negligent in failing to prevent destruction of the ecosystem which previously existed at and on claimants' waterfront properties and for improperly handling claimants' complaints regarding conditions on the properties. The second cause of action asserts that defendant's employees in a "manner constituting depraved indifference in regard to the ecology of the Long Island Sound failed to take any action regarding the construction of a solid concrete block at 1340 Flagler Drive" (Amended Claim, Paragraph 69). The third cause of action alleges intentional and malicious malfeasance in failing to adequately address claimants' complaints, in failing to take action, properly investigate, evaluate and inspect claimants' complaints. The fourth cause of action alleges that defendant's employees misrepresented facts to Ms. Atwood for the purpose of deceiving the claimants. The fifth cause of action alleges passive nonperformance in that defendant's employees failed to take action after discovering violations of the Environmental Conservation Law. The sixth cause of action asserts that defendant's employees owed a special duty to claimants and breached that duty.

The State now moves to dismiss the claim on the following grounds: (1) failure to state a cause of action; (2) the claim is not justiciable; (3) the relief sought is equitable in nature and obtainable only in an Article 78 proceeding in Supreme Court; (4) DEC's determination was discretionary in nature and is a quasi-judicial determination protected from liability; (5) the facts alleged are not sufficient to establish that a special duty was owed to claimants; (6) the notice of intention and claim failed to meet the particularity requirements of Court of Claims Act § 11 and therefore the amended claim is untimely; (7) the notice of intention and claim were untimely served and filed and therefore the amended claim is untimely.

The Court will first deal with claimants' argument that the State's motion must be denied on the basis that the State has waived any objection to the timeliness of the filing of the claim.

As stated previously, claimants served a notice of intention upon the Attorney General on November 15, 2002 and served and filed a claim on November 18, 2002. By notice of motion dated December 27, 2002, returnable on January 22, 2003, the State made a pre-answer motion to dismiss the claim to the assigned Judge. The motion was adjourned to April 9, 2003 when the assigned Judge issued an order of recusal which was filed in the Clerk's Office on February 25, 2003 (see Exhibit A attached to Affirmation in Opposition). The matter was then assigned to the undersigned. Thereafter, claimants served and filed an amended claim on March 5, 2003.

By stipulation filed in the Clerk's Office on April 4, 2003 the parties agreed to the withdrawal of the original motion to dismiss and agreed that the defendant's time to answer the amended claim be extended to May 23, 2003 (see Exhibit E attached to Motion). A subsequent stipulation extended the defendant's time to answer the amended claim or to move against it to May 30, 2003 (see Exhibit D attached to Affirmation in Opposition). The Court notes that the State's motion was timely served.

Claimants now assert that by withdrawing the first motion to dismiss without reserving the defense of "timeliness" defendant has waived its rights to object on those grounds in the present motion or in its answer. Claimants' counsel asserts:
"Although the Defendant did raise the timeliness issue in its first motion to dismiss, the Defendant's withdrawal of that motion without a reservation of the defense is the same as if the Court had decided the motion and rejected said defense".

Counsel further asserts that this second motion is not permitted pursuant to CPLR 3211 (e) which permits only one motion to dismiss pursuant to CPLR 3211 (a) (7).

The Court rejects claimants' arguments. Claimants service and filing of an amended claim as provided by CPLR 3025 superceded the original claim making the original motion to dismiss moot. Defendant had 40 days to serve and file an answer to the amended claim or to move to dismiss (Uniform Rules for the Court of Claims § 206.7). The parties stipulated to an extension of defendant's time to answer or so move. As the original motion was rendered moot, the Court finds that the instant motion does not violate the single motion rule under CPLR 3211 (e).

The court will deal with the timeliness issue first. Court of Claims Act § 10 (3) requires that a claim seeking damages for injuries caused by the negligence or unintentional tort of a State employee shall be filed with the Court and served upon the Attorney General within 90 days after accrual of the claim unless within that time period the claimant serves upon the Attorney General a notice of intention to file a claim, in which event, the claim must be served and filed within two years after accrual.

For purposes of the Court of Claims Act, a claim accrues when damages are reasonably ascertainable (Arbor Hill Partners v New York State Commr. of Hous. and Community Renewal, 267 AD2d 675; Augat v State of New York, 244 AD2d 835, lv denied 91 NY2d 814; Inter-Power of N.Y. v State of New York, 230 AD2d 405). A delay in filing a claim will not be excused if a claimant's damages are reasonably ascertainable, even if the damages might be indefinite to some extent (Arbor Hill Partners v New York State Commr. of Hous. and Community Renewal, 267 AD2d 675, supra; Ton - Da - Lay, Ltd. v State of New York, 70 AD2d 742, 743, appeal dismissed 48 NY2d 629, 653, lv denied 48 NY2d 612; Otis El. Co. v State of New York, 52 AD2d 380, 383). The amended claim asserts that the claim accrued on October 16, 2002 alleging that this is the date the damages were discovered (see Amended Claim, Paragraph 4). If this is the date the claim accrued, then the notice of intention served on November 15, 2002 was timely and the claim and amended claim are also timely served and filed.

Claimants assert that on October 1, 2002, at Mr. Kaufman's request, Dr. J. Evan Ward inspected claimants' waterfront properties and that on October 16, 2002 Dr. Ward provided Mr. Kaufman with a report detailing the destruction of the ecological habitat. Claimants assert this is when their damages became reasonably ascertainable.

However, in both Paragraph 45 of the amended claim and Paragraph 57 of Mr. Kaufman's affidavit in opposition to the motion it is stated that on April 30, 2001 Ms. Atwood sent a letter to Commissioner Crotty along with a report prepared by Nicholas Stramandi, P.E. of the VSA Group which "detailed the loss and damage to the marshland and migration of the wetlands" (Amended Claim, Paragraph 45 and Exhibit FF attached and Kaufman Affidavit Paragraph 57). Mr. Stramandi's report is dated April 12, 2001. However, also attached to Mr. Kaufman's affidavit in opposition as Exhibit B is a report entitled "Coastal Wetlands and Intertidal Zone Changes at South Sea Wall 1320/1330 Flagler Drive, Mamaroneck, NY 10543" prepared by Mr. Stramandi and dated December 8, 2000. Mr. Stramandi's report states:
A. The improper and unauthorized enlargement of the adjacent property owner's gangway foundation with top elevation above high tide is the sole cause for the loss of wetlands, soil accretion and scouring that has occurred in the intertidal zones along Mr. Kaufman's sea wall.

B. The new concrete structure has significantly modified wave and current energy reaching the intertidal zone thus generating the coastal wetland changes and intertidal accretion and scouring currently present. The elevated concrete structure has essentially been built perpendicular to the adjacent property owner's sea wall and has created a partial full-time barrier where one did not exist before thus causing:

1. a significant reduction in wave energy reaching the intertidal zone due to incident wave reflection and refraction.

2. constraints to the normal tide flow in front of both Mr. Kaufman's properties and the adjacent property owner's sea wall. The change in flow has:

a. significantly modified the wetland configuration

b. caused scouring at the ends of the breakwater and erosion of in situ soils at the breakwater ends causing toe wash out of stabilizing soils

c. generated considerable soil accretion along Mr. Kaufman's sea wall

d. created previous non-existent accretion area along the protected side of the concrete structure where none existed before. (See photo 2.)

C. Intertidal zone changes along both properties will continue until a new natural equilibrium is achieved..."

Thus, claimants damages appear to have been reasonably ascertainable by, at the latest, April 12, 2001, if not by December 8, 2000. It is possible that damages were reasonably ascertainable even earlier than December 8, 2000 based upon Ms. Atwood's correspondence dated May 2, 2000 addressed to Governor Pataki and the then DEC Commissioner Cahill wherein she states:
"The tidal wetlands have been effected!
This Dam has obstructed and altered the movement of the water flow.
We have a new sand beach in front of one of our properties.
The sea grasses are gone in the area surrounding the Cement Dock/Deck/Dam.
I am not a marine specialist, so I do not know the other specific changes that have occurred, but there appear to be many" (see Exhibit DD, Page 2 attached to Amended Claim).

The Court has reviewed the reports of various scientists and a professor of civil, environmental and ocean engineering prepared in early 2003 regarding claimants' damages (see Exhibits A, F, G, H and I attached to Kaufman Affidavit in Opposition). These reports do not change the conclusion reached by Mr. Stramandi in December 2000 and reiterated in April 2001. Thus, based upon the record submitted, the Court concludes that the latest date claimants' damages were reasonably ascertainable was April 12, 2001 and thus the claim accrued on that date. Claimants had 90 days from that date to properly serve a notice of intention upon the Attorney General or serve and file a claim. This claimants failed to do. The notice of intention was not served until November 15, 2002, more than 90 days after accrual. As the notice of intention was not timely served pursuant to Court of Claims Act § 10 (3), it did not extend claimants' time to serve and file the claim. The claim which was served and filed more than 90 days after accrual is untimely as is the amended claim. The failure to timely comply with the statutory filing requirements of the Court of Claims Act is a fatal jurisdictional defect and the claim must be, and is hereby, dismissed (see, Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 667; Calderazzo v State of New York, 74 AD2d 954).

As the Court has dismissed the claim, there is no need to address the remainder of the State's motion. I do note in passing however that the gravamen of this matter seems more suited to an Article 78 proceeding than to an action in the Court of Claims.

The following papers were read on the State's motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support
and Exhibits Attached 1

Affirmation in Opposition and
Exhibits Attached 2

Affidavit of Claimant Melvyn Kaufman and
Exhibits Attached 3

Reply Affirmation 4

Filed Papers: Claim and Amended Claim

October 1, 2003
White Plains, New York

Judge of the Court of Claims

[1] The two other named claimants.
[2] a/k/a Ms. Elizabeth H. Atwood.
[3] Erin M. Crotty succeeded John P. Cahill as DEC Commissioner.
[4] Commissioner Crotty reiterated this point to Ms. Atwood in correspondence dated July 12, 2001 (see Exhibit II attached to Amended Claim).