New York State Court of Claims

New York State Court of Claims

EMBEE v. THE CITY UNIVERSITY OF NEW YORK, #2004-016-008, Claim No. None, Motion No. M-67512


Case Information

EMBEE CORP. The caption has been changed from that on the proposed claim to reflect that the properly named defendant is the City University of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been changed from that on the proposed claim to reflect that the properly named defendant is the City University of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Nathanson, Devack & Memmoli, LLPBy: Mitchell J. Devack, Esq. and Nicholas P. Otis, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 20, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Embee Corp. 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 alleged that Embee entered into a contract with defendant under which it would install floor coverings at the John Jay College of Criminal Justice for the amount of $47,470. Embee alleges that while partial payment was made, there remains a balance due and owing of $15,741. In order to decide 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) defendant was substantially prejudiced; (4) 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 three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or 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, according to claimant, the last date of services rendered was January 12, 2002, after which Embee sought payment of the balance due in a series of discussions and correspondence culminating in an April 7, 2003 letter in which Embee made a final request for payment. See exhibit A to claimant's moving papers. Defendant was thus immediately aware upon completion of the job that Embee sought additional payment. The extant correspondence and documentation will allow defendant to investigate and prepare its defenses. Overall, I find that these three factors of the Act have been satisfied.

As to an alternate remedy, Embee's claim lies solely against CUNY in this Court and thus this factor has been met. As to excuse, counsel asserts that claimant previously "erroneously commenced this action in Supreme Court." See ¶10 of the October 7, 2003 affirmation of Mitchell J. Devack. Such is not a sufficient excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The final factor to be considered is merit. With regard to this factor, defendant argues that the proposed claim does not comply with §11 of the Act in that it does not "delineate, or break down [the total amount sought], into specific amounts . . . so that the defendant may know exactly what is allegedly owed for certain services provided on certain specific dates." See ¶6 of the January 13, 2004 affirmation of Grace A. Brannigan. A review of the proposed claim shows that it is sufficiently particular so as to comply with §11 of the Court of Claims Act. See, e.g., Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646 (4th Dept 1980). Aside from the foregoing, defendant does not dispute the appearance of merit of the proposed claim. I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the proposed 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-67512 be granted. Within sixty (60) days of the filing of this Decision and Order, claimant shall serve and file its claim – naming the City University of New York as defendant – and otherwise comply with §§11 and 11-a of the Court of Claims Act.

February 20, 2004
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 and affirmation in support, proposed claim and exhibits A and B; defendant's affirmation in opposition; and claimant's reply affirmation.