New York State Court of Claims

New York State Court of Claims

BINGHAMTON REALTY v. THE STATE OF NEW YORK, #2004-019-597, Claim No. NONE, Motion Nos. M-69197, M-69198, M-69199


Synopsis


Claimant's motions for permission to late file three separate property damage claims are granted.

Case Information

UID:
2004-019-597
Claimant(s):
BINGHAMTON REALTY, LLC d/b/a SUPER 8 MOTEL
Claimant short name:
BINGHAMTON REALTY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69197, M-69198, M-69199
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
YOUNG & YOUNGBY: John W. Young, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Mary A. Walsh, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 1, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has filed three separate motions seeking permission to file three corresponding late claims for property damage pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). More specifically, claimant alleges it suffered property damage from flooding that occurred on December 17 and 18, 2001 [M-69198]; December 10 and 11, 2003 [M-69199]; and May 10, 2004 [M-69197] resulting from the negligence of the State of New York.[1] The State of New York (hereinafter "State") opposes all three motions.

The subject property is improved with a Super 8 Motel located at 771 Upper Court Street, Kirkwood, New York (hereinafter "Subject Property"). The history of flooding at the Subject Property is the focus of claimant's current motions. On July 31, 1986, the Subject Property, then owned by Prashant Enterprises Inc. (hereinafter "Prashant") and operated as a Quality Inn motel, was flooded. Prashant sued the State to recover for its property damages. Prashant's theory of liability rested on allegations that on July 5, 1985, the State Department of Transportation ("DOT") had issued a permit to an adjoining landowner, Ralph Wood, allowing him "[t]o enclose within a seven-foot-diameter pipe a portion of the creek traversing his property, to connect with an existing pipe traversing [another adjoining] property." (Prashant Enters. v State of New York, 206 AD2d 729, 729). In short, Prashant alleged the pipe installed by Mr. Wood was too small and thus created a bottleneck causing the water to back up onto its property. On appeal, the Third Department found as follows:
[t]he State's negligence was the sole proximate cause of the damage to [Prashant's] property. It is undisputed that the pipe installed on the Wood property had a capacity sufficient to accommodate, at most, a five-year storm, and claimant's expert, Edwin Gent, testified that proper design for a commercial area mandated a culvert sufficient to accommodate at least a 25-year storm.

(Prashant, 206 AD2d at 731).


Claimant alleges that the 2001, 2003, and 2004 floods all resulted from the same underlying circumstances as the 1986 flood, namely the State's issuance of the permit in 1985 to allow the installation of an improperly sized pipe. Now, by way of these motions, claimant seeks permission to file late claims with respect to the 2001, 2003, and 2004 floods.


A brief comment on the proposed claims before proceeding. The State's opposing papers itemize various errors in the proposed claims which led to some understandable confusion on its part. The court itself had some difficulty in sorting through these three proposed claims and the sometimes overlapping allegations and errors.[2] Suffice it to say, however, the court -as was the State- was ultimately able to glean the parameters of each motion and the pertinent allegations, namely that M-69198 relates to the December 17 and 18, 2001 floods; M-69199 relates to the December 10 and 11, 2003 floods; and M-69197 relates to the May 10, 2004 flood.


The proposed claims are each comprised of seven causes of action based upon theories of negligence, gross negligence, de facto appropriation, public and private nuisance, trespass, inverse condemnation, and equitable and declaratory relief. Neither of the parties saw fit to submit any memoranda of law.
  1. Jurisdiction
As a threshold issue, the court must determine whether it has jurisdiction to review and determine each of these motions. A late filing application is timely if it is filed before the expiration of the applicable statute of limitations relating to the underlying cause of action. Here, the court has the jurisdiction to review and determine the alleged negligence, gross negligence, de facto appropriation, nuisance, trespass, and inverse condemnation causes of action because the applicable statute of limitations for each of these theories is three years and these motions were timely filed from even the earliest alleged date of accrual in December 2001. (81 and 3 of Florida v State of New York, Ct Cl, December 5, 2003, Claim No. 102175, Motion No. M-66375, Minarik, J. [UID #2003-031-099] [de facto appropriation];[3] Alamio v Town of Rockland, 302 AD2d 842 [trespass and nuisance]; Sova v Glasier, 192 AD2d 1069, 1069-1070 [private nuisance]; Linzenberg v Town of Ramapo, 1 AD3d 321, 322 [inverse condemnation]; CPLR 214 [4]; CCA 10 [1]). However, with respect to claimant's request for equitable and declaratory relief, this court lacks jurisdiction to grant such relief and, as such, need not address the statutory factors relative thereto. (CCA 10 [9]).

  1. 10 (6) Motion
The factors that the court must consider in determining a properly framed CCA 10 (6) motion are whether:


1. the delay in filing the claim was excusable;

2. the State had notice of the essential facts constituting the claim;
3. the State had an opportunity to investigate the circumstances underlying the claim;

4. the claim appears to be meritorious;
5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State; and

6. there is any other available remedy.


Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Id. at 11). While this standard clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections nor does it suggest that the court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Id. at 11-12).


On the issue of merit, claimant states in conclusory fashion that the doctrine of res judicata is applicable in view of the prior Prashant decision. In essence, not only is claimant arguing that the prior Prashant litigation involving the Subject Property warrants an automatic finding on the factor of merit, but also what would equate to a summary judgment disposition even before these claims are filed. Stated another way, claimant argues that the findings of fact and law from the Prashant decision relating to the 1986 flood apply with full force and effect to the proposed claims for the 2001, 2003 and 2004 floods.


The court finds that res judicata does not apply. Res judicata is a doctrine holding "[t]hat, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action [citations omitted]." (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485). New York has adopted a transactional analysis approach in deciding "[w]hat 'factual grouping' constitutes a 'transaction' or 'series of transactions' [which] depends on how 'the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether...their treatment as a unit conforms to the parties' expectations or business understanding or usage' [citations omitted]." (Smith v Russell Sage Coll., 54 NY2d 185, 192-193). Here, even assuming privity between Prashant and claimant, the 1986 flood occurred between 15 and 17 years prior to the instant 2001, 2003 and 2004 floods. This court finds that such a span is so remote in time that neither the 2001, 2003 or 2004 floods can be regarded as one or a series of transactions with the 1986 flood for purposes of res judicata. (Partridge v State of New York, Ct Cl, May 31, 2000, Claim No. 90710, Motion No. M-58210, Cross-Motion No. CM-58893, Patti, J. [UID No. 2000-013-002]). As such, the court finds that the doctrine of res judicata does not apply. This is not to say, however, that these allegations may not serve as the basis for a dispositive motion after full discovery, only that based upon these allegations the court does not find the doctrine of res judicata applicable for the reasons stated.[4]


Although the doctrine of res judicata is inapplicable, the court finds claimant's papers otherwise satisfy its burden of establishing that the proposed claims appear meritorious. It is well-settled that "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Here, the State's various objections were not raised by anyone with firsthand knowledge. (Matter of Powell v State of New York, 187 AD2d 848; Calzada v State of New York, 121 AD2d 988, 989). As such, the court finds that claimant has satisfied the minimal threshold of establishing that the proposed claims appear meritorious.[5] (Marcus v State of New York, 172 AD2d 724, 724-725).


With respect to the remaining factors, claimant does not offer any explanation relative to the delay in filing these claims. Obviously, the lack of an excuse is insufficient and this factor weighs against claimant.


Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant contends that the State obtained actual knowledge of these essential facts "[w]ithin a reasonable time before and after the ninety day statutory period" from the prior Prashant litigation. (Affirmation of John W. Young, Esq., ¶ 11). The concept of notice in a late filing application relates to the State's notice of an incident after it has actually occurred, thereby permitting the State to investigate the claim if it so chooses. (Wolf v State of New York, 140 AD2d 692; Matter of Crawford v City Univ. of N.Y., 131 Misc 2d 1013, 1014-1015). Stated another way, the court is concerned only with arguments relative to notice of the essential facts of this case received by the State prior to the expiration of the ninety-day statutory period for filing the claim. (Turner v State of New York, 40 AD2d 923). As such, the State's involvement with the Prashant litigation is not pertinent to a determination of whether the State had notice of the essential facts of the 2001, 2003 and 2004 floods constituting these claims. Otherwise, in late filing motions, the State would be deemed to have notice of every claim arising from a defect or dangerous condition it created or knew or should have known existed, even before an incident occurs.


Additionally, claimant alleges that the State also obtained notice from a meeting between claimant's principals and a DOT engineer sometime after the flood of December 10 and 11, 2003 but before the flood of May 10, 2004. (Responding Affidavit of Firoza Khanom and Anamul Kabir, ¶ ¶ 9 & 11). Of course, said meeting cannot serve as notice of the 2001 flood since the meeting took place well after the expiration of the ninety-day statutory period for filing the claim. (Turner, 40 AD2d 923). With respect to the December 10 and 11, 2003 flood, since there is no exact date of the meeting the court cannot conclude with certainty that said meeting was held within ninety days thereafter. Nor can said meeting serve as notice of the May 10, 2004 flood since the meeting was held before said May 10, 2004 flood. The court finds that claimant has failed to establish the State had notice of the essential facts constituting each of these claims and, as such, did not have an opportunity to investigate these claims within the statutory period relative to each claim. As such, these two factors weigh against claimant.


With respect to the factor of substantial prejudice, claimant argues there is none, while the State argues in general terms that the 1986 investigation will only be relevant on some issues but not all. (Affirmation of Mary A. Walsh, AAG, ¶ ¶ 21 & 23). The State has not demonstrated to this court that it cannot now prepare and proceed to trial due to the delay in filing nor does it argue that the delay in filing has generated an unfair advantage to the claimant. The court finds that this factor favors claimant.


With respect to alternate remedies, claimant conclusively states it has none, while the State points to potential fault on the part of the adjoining landowners and the Town of Kirkwood. The court will give claimant the benefit of the doubt here and find this factor to be in claimant's favor.


Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that three of the six factors, including the all important factor of merit, weigh in claimant's favor.


Accordingly, for the reasons stated above, IT IS ORDERED, that claimant's motions for permission to permit the late filing and service of three claims, M-69197, M-69198, and M-69199, are GRANTED. Claimant shall file said claims with the Clerk of the Court and serve a copy of the claims upon the Office of the Attorney General within sixty (60) days from the date of filing of this Decision & Order with the Clerk of this Court. The claims, however, should be revised to delete any request for equitable and declaratory relief. Additionally, the proposed claims should be revised to correct the errors noted hereinabove. (See supra, p 3 and footnote 2). Finally, the service and filing of the claims shall be in conformity with all applicable statutes and rules of the court including CCA 10, 11 and 11-a.


December 1, 2004
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with these motions:
  1. Notice of Motion No. M-69197, dated September 30, 2004, and filed October 6, 2004.
  2. "Affirmation" of John W. Young, Esq., in support of Motion No. M-69197, sworn to September 30, 2004, with attached exhibits.
  3. Proposed Verified Claim, dated September 30, 2004.
  4. Affirmation of Mary A. Walsh, AAG, in opposition to Motion No. M-69197, dated October 19, 2004, and filed October 21, 2004.
  5. Responding Affidavit of John W. Young, Esq., in support of Motion No. M-69197, sworn to October 26, 2004, filed October 27, 2004.
  6. Responding Affidavit of Firoza Khanom and Anamul Kabir, in support of Motion No. M-69197, sworn to October 25, 2004, with attached exhibits.
  7. Responding Affidavit of Edwin C. Gent, P.E., in support of Motion No. M-69197, sworn to October 26, 2004, with attached exhibits.
  8. Notice of Motion No. M-69198, dated September 30, 2004, and filed October 6, 2004.
  9. Affirmation of John W. Young, Esq., in support of Motion No. M-69198, sworn to September 30, 2004, with attached exhibits.
  10. Proposed Verified Claim, dated September 30, 2004.
  11. Affirmation of Mary A. Walsh, AAG, in opposition to Motion No. M-69198, dated October 19, 2004, filed October 21, 2004.
  12. Responding Affidavit of John W. Young, Esq., in support of Motion No. M-69198, sworn to October 26, 2004, filed October 29, 2004.
  13. Responding Affidavit of Firoza Khanom and Anamul Kabir, in support of Motion No. M-69198, sworn to October 25, 2004, with attached exhibits.
  14. Responding Affidavit of Edwin C. Gent, P.E., in support of Motion No. M-69198, sworn to October 26, 2004, with attached exhibits.
  15. Notice of Motion No. M-69199, dated September 30, 2004, and filed October 6, 2004.
  16. "Affirmation" of John W. Young, Esq., in support of Motion No. M-69199, sworn to September 30, 2004, with attached exhibits.
  17. Proposed Verified Claim, dated September 30, 2004.
  18. Affirmation of Mary A. Walsh, AAG, in opposition to Motion No. M-69199, dated October 19, 2004, and filed October 21, 2004.
  19. Responding Affidavit of John W. Young, Esq., in support of Motion No. M-69199, sworn to October 26, 2004, filed October 29, 2004.
  20. Responding Affidavit of Firoza Khanom and Anamul Kabir, in support of Motion No. M-69199, sworn to October 25, 2004, with attached exhibits.
  21. Responding Affidavit of Edwin C. Gent, P.E., in support of Motion No. M-69199, sworn to October 26, 2004, with attached exhibits.


[1]Claimant also references flooding that allegedly occurred on August 16, 2004 and September 17, 2004 which are not part of these motions. Claimant alleges that notices of intention have been served on the Attorney General's office relative to those subsequent dates.
[2]By way of example, the proposed claim for the 2001 flood is missing a paragraph 11. (M-69198, Proposed Claim). Additionally, the corresponding attorney's affirmation mistakenly references the 2004 flooding date. (Affirmation of John W. Young, Esq. ¶ ¶ 7 & 11). Next, the proposed claim for the 2003 flood is missing some language in paragraph 11. (M-69199, Proposed Claim, pp 3-4). Finally, the proposed claim for the 2004 flood refers to claimant as the lessee although it was then the owner of the Subject Property. (M-69197, Proposed Claim, ¶ 1). Further, said proposed claim contains missing language in paragraph 6 (pages 2-3) and paragraph 11 (pages 3-4). (Proposed Claim, M-69197). Additionally, the corresponding attorney's affirmation mistakenly references the 2001 flooding dates. (Affirmation of John W. Young, Esq. ¶ 20).
[3]Unreported decisions from the Court of Claims are available via the Internet at
[4]The parties have not addressed the doctrine of stare decisis. Stare decisis "[p]rovides that once a court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision." (People v Bing, 76 NY2d 331, 337-338). However, "[t]he doctrine of stare decisis bars parties from relitigating settled principles of law and legal issues and does not apply to factual determinations [citation omitted]." (State of New York v Moore, 298 AD2d 814, 815). Here, claimant alleges that the facts applicable to the 2001, 2003 and 2004 floods are the same as the 1986 flood and asserts no changes have occurred in the ensuing years. In this court's view, however, this is a factual determination that this court will only be able to make after a trial of this matter. Accordingly, the court finds it would be premature to apply the doctrine of stare decisis at this early stage before the factual record in this case is fully developed.
[5]With respect to the 2001 flood, there is an allegation that claimant was a lessee with an option to purchase at the time. The court will leave it to the discovery process to disclose more details regarding claimant's status during the 2001 flood and whether this impacts claimant's standing relative thereto.