New York State Court of Claims

New York State Court of Claims

MONROE COUNTY v. THE STATE OF NEW YORK, #2006-031-083, Claim No. 111668, Motion Nos. M-71731, CM-71847


Synopsis


Claimant’s notice of intention, admittedly served more than six months after accrual of alleged breach of contract cause of action, was untimely. Accordingly, Defendant’s motion for dismissal of the claim is granted. Claimant has failed to demonstrate that the contract was breached. Accordingly, Claimant’s proposed claim lacks the appearance of merit. Claimant’s motion for late claim relief must also be denied

Case Information

UID:
2006-031-083
Claimant(s):
COUNTY OF MONROE
Claimant short name:
MONROE COUNTY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111668
Motion number(s):
M-71731
Cross-motion number(s):
CM-71847
Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
GATES & ADAMS, P.C.BY: RICHARD T. BELL JR., ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 19, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 10, were read on motion by Defendant for dismissal of the claim and on Cross Motion by Claimant for permission to file a late claim.
1. Defendant’s Notice of Motion (M-71731), filed May 15, 2006;
2. Affirmation of James L. Gelormini, Esq., dated May 12, 2006, with attached exhibits;
3. Claimant’s Notice of Cross Motion (CM-71847), filed June 13, 2006;
4. Affirmation of Richard T. Bell Jr., Esq., dated June 12, 2006, with attached exhibits;
5. Affidavit of Edwin Welsh, sworn to June 22, 2006, with attached exhibits;
6. Reply Affirmation of James L. Gelormini, Esq., dated June 27, 2006, with attached exhibit;
7. Affirmation of Richard T. Bell Jr., Esq., dated August 14, 2006;
8. Affidavit of Terrence Rice, sworn to August 11, 2006, with attached exhibits;
  1. Supplemental Affirmation of James L. Gelormini, Esq., dated August 21, 2006;
10. Supplemental Affidavit of Edwin Welsh, sworn to August 21, 2006. BACKGROUND

In its underlying claim, filed on November 23, 2005, Claimant, County of Monroe, alleges a cause of action based upon an alleged breach of contract by Defendant. In January of 1994, Claimant County of Monroe and Defendant State of New York entered into a contract for the reconstruction of the intersection of Mt. Read Boulevard and English Road in the City of Rochester, New York. Both parties agree that the intersection in question is owned and operated by Claimant. According to the terms of the original contract, Defendant was to oversee the reconstruction of the intersection on Claimant’s behalf, and all phases of the contract were to be completed by December of 1999.

On May 25, 2003, Robert Malinoff was injured while operating his motorcycle at the intersection of Mt. Read Boulevard and English Road. Mr. Malinoff filed a notice of claim against the County of Monroe. The County of Monroe settled Mr. Malinoff’s claim for the sum of $300,000.00. Payment of this settlement amount was approved by the Monroe County Executive on May 13, 2005 and payment to Mr. Malinoff was tendered on May 25, 2005.

Claimant commenced this action alleging that Defendant breached the contract by failing to complete its work within the time permitted. Claimant alleges that, had the work been completed as the contract required, the condition that caused Mr. Malinoff’s accident would have been corrected. Claimant seeks common law indemnification from Defendant asserting that, but for Defendant’s breach, the changes to the intersection would have been complete and Mr. Malinoff would not have been injured at the intersection.

Both parties agree that the nature of Claimant’s cause of action stems from the alleged breach of contract. Accordingly, with payment having been tendered to Mr. Malinoff on May 25, 2005, Claimant’s service of the claim upon Defendant on December 28, 2005, more than six months later, was untimely. Defendant now moves for dismissal of the claim. Claimant has filed a cross motion in which it seeks permission to file a late claim.
DEFENDANT’S MOTION (M-71731) FOR DISMISSAL OF THE CLAIM
Pursuant to Court of Claims Act (“CCA”) § 10(4), a claim based upon breach of contract, such as is alleged here, must be filed within six months unless Claimant has served a notice of intention to file a claim. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA § 10 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). As such, the claim must be dismissed as untimely.
CLAIMANT’S APPLICATION FOR LATE CLAIM RELIEF
Claimant has requested that it be permitted to file a late claim. Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

With regard to its excuse for the delay, Claimant has offered no legally recognized excuse. Accordingly, I find that this factor weighs in Defendant’s favor. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a § 10(6) application, and does not necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, supra).

Claimant has adequately demonstrated that it has no other adequate avenue of redress for the matters alleged in the claim. This factor, therefore, weighs in Claimant’s favor.

The next three factors covering notice, opportunity to investigate and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). The Claimant appears to have provided Defendant with all pertinent information in its possession relating to the incident. I find no indication that the one month delay in service of the claim prejudiced Defendant. I find that these three factors, therefore, weigh in Claimant’s favor. Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Defendant asserts that the claim lacks merit because the contract was not, in fact, breached. Defendant’s uncontradicted submissions indicate that the original contract, while calling for completion of construction prior to the date of Mr. Malinoff’s accident, was amended and signed by both parties prior to the accident. This amendment called for completion of all phases of the contract on or before December 31, 2004. The contract was again amended in May of 2005, and the date for completion of all phases of work was again extended, this time to December 31, 2005.

A valid modification or amendment of a contract results in a “new agreement between the parties which pro tanto supplants the affected provisions of the original agreement . . . “ (22A NY Jur 2d, Contracts § 474). On the date of Mr. Malinoff’s accident, May 25, 2003, the contract between the parties called for Defendant’s work to be completed on or before December 31, 2004. Accordingly, Defendant was not in breach of the contract at the time of the accident, thus the alleged breach could not have led to or caused the accident. Accordingly, I find that the proposed claim lacks the appearance of merit.

Upon reviewing and balancing all of the factors enumerated in CCA §10(6), the Court finds that they weigh in Defendant’s favor. Based upon the foregoing, it is hereby

ORDERED, that Defendant’s motion (M-71731) for dismissal of the claim as untimely is granted. It is further

ORDERED, that Claimant’s motion for permission to file a late claim (CM-71847) is denied.

December 19, 2006
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims