New York State Court of Claims

New York State Court of Claims

OCEAN SIDE v. THE STATE OF NEW YORK, #2007-030-559, Claim No. 113496, Motion Nos. M-73339, M-73603


Synopsis


Claimant has satisfied pleading requirements in breach of contract claim for failure to pay for linen services. While not the clearest statement as to the total sum claimed, containing, as it does, the language “not less than” to qualify the dollar figure, defendant has nonetheless been sufficiently apprized of what its potential liability is as required by Court of Claims Act §11(b).

Case Information

UID:
2007-030-559
Claimant(s):
OCEAN SIDE INDUSTRIAL INDUSTRIES, INC.
Claimant short name:
OCEAN SIDE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113496
Motion number(s):
M-73339, M-73603
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
THALER & GERTLER, LLPBY: JEFFREY L. SOLOMON, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: WANDA PEREZ-MALDONADO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 6, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on the disposition of the Court’s Order to


Show Cause [M-73339], and on the Defendant’s motion to dismiss [M-73603]:

  1. Order to Show Cause signed May 3, 2007
2,3 Affidavit in Opposition to the Court’s Order to Show Cause by Jeffrey L. Solomon, Counsel for Claimant; Memorandum of Law in Opposition to the Court’s Order to Show Cause and in Support of Motion to Amend Claim

4,5 Notice of Motion to Dismiss; Affirmation in Support of Defendant’s Motion to Dismiss by Wanda Perez-Maldonado, Assistant Attorney General, and attached papers

  1. Affidavit in Opposition to Defendant’s Motion to Dismiss Claimant’s Claim by Jeffrey L. Solomon, and attached exhibits
  1. Reply to Affidavit in Opposition to Defendant’s Motion to Dismiss Claimant’s Claim and attached papers
8,9 Filed Papers: Claim, Answer

Upon review of the claim filed herein on March 26, 2007, it appeared that claimant failed to comply with the requirements of Section 11 of the Court of Claims Act with regard to the total sum claimed [see Kolnacki v State of New York, 8 NY3d 277 (2007)]; the Court issued an Order to Show Cause, adjourned to July 18, 2007, directing claimant to show cause by means of papers alone why the claim should not be dismissed for lack of jurisdiction, and further directing the Attorney General to submit papers as desired. Thereafter, claimant submitted papers, and defendant brought a motion to dismiss on the same ground, and on an additional ground that the claim was not served within six (6) months of its accrual as required by Court of Claims Act §10(4).[1] This latter ground anticipates dismissal of the claim, and/or a motion to amend the claim to include a total sum and avoid jurisdictional infirmity.

This is a claim for breach of contract, whereby Claimant alleges that on or about November 18, 2006 defendant breached a multi-year contract with claimant whereby claimant provided institutional laundry service at the New York State Veterans Home at Montrose. The claim was served on the Attorney General’s Office on March 27, 2007 by certified mail, return receipt requested. In its Answer, in addition to general denials, the Defendant asserted four affirmative defenses.

Court of Claims Act §11(b) was amended effective August 15, 2007 to specifically overrule the holding in Kolnacki v State of New York, supra, relative to the statement required in a claim as to the total sum claimed for damages for personal injury claims among others.

In the ad damnum paragraph of its claim, Claimant states it
“was damaged in the amount of not less than $468,000.00, plus interest based on losses for the value of services rendered, the value of the linen losses and the value of the performance of the contract to its end and Claimant demands judgment against the Defendant(s) in for said amount.” [Claim Number 113496].
While not the clearest statement of the “total sum claimed,” the Defendant has nonetheless been apprized of what its potential liability in real dollar terms might be, which is the more acceptable laudatory purpose behind the pleading requirements of Court of Claims Act §11(b).

Indeed, even before the amendment of Court of Claims Act §11(b), when Kolnacki v State of New York, supra appeared to require dismissal on jurisdictional grounds regardless of the difficulty of ascertaining actual damages based on the type of claim asserted, this court found that
“Reduced to its simplest terms, Kolnacki v State of New York, supra, merely requires that a number - any number - be set forth as a total sum claimed, to survive jurisdictional scrutiny. Indeed, by declaring that “. . . [a] claim may always be amended at a later time, if necessary . . .” [id. at 281], the Court of Appeals left open the opportunity for such estimates. Here, read in context, what claimant demands as his total sum claimed is $1,000,000.00. The addition of three little words - “not less than” - in one view might render the demand only slightly less of a reach than one for infinity, however, any reasonable defendant reading this claim, and then trying to ascertain the extent of the State’s potential liability, would be able to assess same. While strict attention to the requirements for the contents of a claim have been held to occupy jurisdictional dimension, the statutory requirements still serve that primary purpose of enabling the State to ascertain what the claim is about, where it occurred and why, and how much of a financial “hit” is sought, in order to allow defendant to investigate its potential liability and properly defend.” Harding v State of New York, UID # 2007-030-535, Claim No. 109786, Motion No. M-73160 (Scuccimarra, J., May 31, 2007).


Lepkowski v State of New York, 1 NY3d 201, 208 (2003) does not hold to the contrary. There, no dollar amount at all was stated to express the amount of damages purportedly owed for unpaid overtime compensation. Here, at least one figure purports to represent claimant’s loss for “. . . the value of services rendered, the value of linen losses and the value of the performance of the contract to its end . . . ” [See Claim Number 113496]. Additionally, and as a matter of simple civil practice, it has always been the discretionary option to conform the pleadings to the proof, provided there is no prejudice. See Civil Practice Law and Rules §§2001; 3025(c).

Accordingly, claimant here has satisfied the pleading requirements of Court of Claims Act §11(b), the language “not less than” contained in the ad damnum clause is stricken as surplusage, and the Order to Show Cause issued herein is hereby resolved and withdrawn because this Court has subject matter jurisdiction over the claim. Additionally, Defendant’s motion to dismiss is in all respects denied. Finally, since no motion to amend the ad damnum clause is actually noticed before the court, no issues concerning any proposed amendment to the claim have been addressed.[2]

September 6, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Court of Claims Act §10(4) provides that a claim alleging breach of contract should be served on the Attorney General and filed within six (6) months of its accrual, unless a notice of intention to file a claim is served upon the attorney general within the same time period, in which case the claim may be served and filed within two (2) years of its accrual.
[2]. Claimant noted in its papers that “in the alternative” it seeks leave to amend the claim.