New York State Court of Claims

New York State Court of Claims
SIGNATURE HEALTH v. THE STATE OF NEW YORK, #2005-015-058, Claim No. 111043, Motion Nos. M-70595, CM-70739
Synopsis

CPLR 205(a) is inapplicable in the Court of Claims. Contract claim filed and served more than 6 months after accrual dismissed as untimely. REVERSED 42 AD3d 678 3d Dept 7/12/07
Case Information
UID:
2005-015-058
Claimant(s):
SIGNATURE HEALTH CENTER, LLC
Claimant short name:
SIGNATURE HEALTH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111043
Motion number(s):
M-70595
Cross-motion number(s):
CM-70739
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Errol Blank, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 3, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:
REVERSED 42 AD3d 678 3d Dept 7/12/07
See also (multicaptioned case)



Decision

Defendant's cross-motion to dismiss the instant claim for lack of jurisdiction arising from the claim's untimely service is granted. Claimant's motion for an order striking certain defenses and for partial summary judgment determining the State's liability and setting the matter down for trial on the issue of damages is denied as academic upon the dismissal. By decision and order dated May 16, 2005 this Court dismissed as jurisdictionally defective a previously filed claim (Claim No. 107802) which the Court determined failed to comply with the substantive pleading requirements of Court of Claims Act § 11 (b) as interpreted by the Court of Appeals in Lepkowski v State of New York, 1 NY3d 201. In a prior partial summary judgment motion the claimant contended that Claim No. 107802 asserted a claim for negligence arising from the failure of Department of Health employees to perform the ministerial duty of adjusting Signature's initial Medicaid reimbursement rate based upon the submission of experiential data.
In its sua sponte dismissal of the claim this Court specifically held:
A thorough review of the claim served and filed in this matter reveals the complete absence of any reference to the items of damage related in paragraph 38 of the Sanders' affidavit. The claim does not specifically refer to either negligence or a failure to perform a ministerial duty. It does not reference claimant's bankruptcy or attorneys fees incurred therein. Nor does the claim mention business losses, additional expenses incurred by Signature as a result of problems with its credit rating or a decline in the value of business. The only specific reference to damages in the claim is contained in the concluding paragraph which states: "By reason of the foregoing, the claimant, Signature, was and continues to be damaged in the amount of $10,000,000, and demands judgment against the Defendant in and for said amount". It is thus clear that although the claim sets forth the "total sum claimed" it fails to state "the items of damage or injuries claimed to have been sustained". Since each of the five elements required of a claim pursuant to section 11 (b) constitute "specific, substantive conditions" to suit in this Court under Lepkowski, the failure to identify the items of damage sustained renders the claim herein jurisdictionally defective in that it fails to comply with the pleading requirements of Court of Claims Act § 11 (b). This jurisdictional defect may not be remedied by either amendment or leave to replead (Roberts v State of New York, 4 Misc 3d 768). Nor does any alleged notice to the State concerning the sort of damages cited by Mr. Sanders in his affidavit compensate for the deficiencies in the claim as "[t]he Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski, supra at p. 208).
Claimant filed the instant claim on June 22, 2005, within six months following termination of the prior action. Claimant now moves for partial summary judgment on the issue of liability on the newly filed claim.
Defendant, asserting that CPLR 205 (a) is inapplicable and that the second action is therefore untimely has cross-moved to dismiss the claim. Claimant's counsel in his reply affirmation concedes that the applicability of CPLR 205 (a) is a threshold issue for the Court but contends that the issue should be decided in claimant's favor. The Court disagrees with claimant's contention and finds the instant action to have been untimely commenced.
CPLR 205 (a) provides as follows:
(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

It appears well settled that CPLR 205 (a) is inapplicable in the Court of Claims since the provisions of section 10 of the Court of Claims Act regarding timely service and filing of a claim are conditions precedent to suit rather than Statute of Limitations and cannot be extended by resort to CPLR 205. The matter at issue herein has been squarely addressed by the Court of Appeals. In Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY 2d 375, the Court held:
Case law distinguishes between a Statute of Limitations and a statutory time restriction on commencement of suit. The former merely suspends the remedy provided by a right of action, but the latter conditions the existence of a right of action, thereby creating a substantive limitation on the right (see, Tanges v Heidelberg N. Am., 93 NY2d 48, 55; Romano v Romano, 19 NY2d 444, 447). Both CPLR 205 (a) and its equivalent predecessor statutes have been held to be inapplicable when the statutory time bar to the commencement of the second action falls into the latter category, as a condition precedent (Glamm v City of Amsterdam, 67 AD2d 1056, 1057, affd for reasons stated below 49 NY2d 714 ['CPLR 205 does not apply to conditions precedent']; Hill v Board of Supervisors, 119 NY 344, 347 [Code of Civil Procedure § 405 not applicable where new action did not comply with a 'condition precedent']; see also, Bernardez v Federal Deposit Ins. Corp., 104 AD2d 309, 310, affd for reasons stated below 64 NY2d 943; Carr v Yokohama Specie Bank, 272 App Div 64, affd 297 NY 674).
***
The legislative intent to condition the waiver of sovereign immunity with respect to the Port Authority on timely suit could not be more clear. Unconsolidated Laws § 7107 unambiguously allows an action against the Port Authority only 'upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year' (McKinney's Uncons Laws of NY § 7107 [emphasis supplied]). Thus, CPLR 205 (a) is inapplicable because, here, the 'right to seek relief is specifically conditioned upon compliance with a particular time requirement rather than, or in addition to, a Statute of Limitations" (Matter of Morris Investors v Commissioner of Fin. of City of N.Y., 69 NY2d 933, 936).

In Alston v State of New York, 97 NY2d 159 at 163 the Court of Appeals held that:
Article II, section 10 of the Court of Claims Act could not be any clearer in conditioning the waiver of sovereign immunity on compliance with the time limitations for filing claims it sets forth. It states that '[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied' with the time limitations established in that section (emphasis supplied). This is fully consistent with the legislative history of the statute (see, Statement in Support, Bill Jacket, L 1939, ch 860, at 27 ['(t)he waiver (of immunity) is conditioned * * * upon the claimant's complying with the limitations contained in Article II, which confers jurisdiction upon the Court']; see also, Davison, Claims Against the State of New York ch 19, at 152 ['Waiver of the State's Immunity is Conditional.']).
In Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp. (93 NY2d 375), we explicitly recognized that a waiver of sovereign immunity can be conditioned upon compliance with a particular time requirement. In that case, the State not only consented to suits against the Port Authority of New York and New Jersey but 'also expressly incorporated within the [same] act a requirement of timely suit as an integral part of its waiver of sovereign immunity' (id., at 379 [citations omitted]). We determined that the 'legislative intent to condition the waiver of sovereign immunity with respect to the Port Authority on timely suit could not be more clear' because the statute allowed an action against the Port Authority only 'upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year' (id. [quoting, McKinney's Uncons Laws of NY § 7107 (L 1950, ch 301, § 7)]). The language and legislative history of Court of Claims Act § 8 similarly compel the conclusion that the Legislature incorporated as an integral part of its waiver of immunity the requirement that claims be filed within the time limits imposed under Court of Claims Act § 10 (4).

In its most recent decision on the subject the Court of Appeals in Campbell v City of New York (4 NY3d 200) continued to note the distinction between a Statute of Limitations which may be tolled by CPLR 205 (a) and a condition precedent to suit which is not affected by CPLR 205 (a). In addition, the following decisions of the Court of Claims have in substance held that the six month extension authorized by CPLR 205 (a) is unavailable in the Court of Claims because the statutory constraints set forth in Court of Claims Act section 10 are conditions precedent to the State's waiver of sovereign immunity: Arnold v State of New York, Ct Cl, May 20, 2005 [Claim No. 110235, Motion Nos. M-69593, CM-69965, UID # 2005-010-029] Ruderman, J., unreported
[1]
; Kilcullen v State of New York, Ct Cl, December 18, 2003 [Claim No. 107234, Motion No. M-67337, UID # 2003-032-115] Hard, J., unreported; Tortorici v State of New York, Ct Cl, May 15, 2002 [Claim No. 104703, Motion No. M-64851, UID # 2002-019-531]; Lebous, J., unreported; Morris v State of New York, Ct Cl, September 17, 2004 [Claim No. None, Motion No. M-68220, UID # 2004-016-054] Marin, J., unreported).
With regard to the instant action claimant knew of the deleterious financial effect on its business traceable to DOH's failure to publish the adjusted rates prior to filing its petition in bankruptcy in December 2003 and knew the limits of its recovery pursuant to the judgment in its article 78 proceeding when DOH made its retroactive payments on August 4, 2003 and October 1, 2003. Damages were clearly ascertainable as of those dates (see Welch v State of New York, 286 AD2d 496). Measured from any of these possible accrual dates the instant claim served on August 19, 2005 was untimely. The defendant's answer raised the issue of the claim's untimeliness with particularity in its first defense and that defense is asserted on the cross-motion. For the reasons set forth above the cross-motion is granted and this untimely claim is hereby dismissed. The dismissal of the claim renders academic claimant's motion to strike defenses and grant partial summary judgment and that motion is accordingly denied.
Finally, in his reply affirmation claimant's counsel requested the Court to exercise its discretionary authority to permit the late filing of a claim pursuant to Court of Claims Act § 10 (6). The Court declines to address the issue of late claim relief in the absence of a proper application for such relief (see Court of Claims Act § 10 (6); 22 NYCRR § § 206.8 [a], 206.9 [a]; Sciarabba v State of New York, 152 AD2d 229; O'Connell Assocs. v State of New York, 176 Misc 2d 697; Hop Wah v State of New York, 137 Misc 2d 751).

January 3, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated August 10, 2005;
  2. Affidavit of Craig B. Sanders, sworn to August 10, 2005 with exhibits;
  3. Notice of cross-motion dated September 27, 2005;
  4. Affirmation of Michael W. Friedman dated September 27, 2005 with exhibit;
  5. Affirmation of Errol Blank dated November 1, 2005.

[1]Unreported decisions from the Court of Claims are available via the internet at