New York State Court of Claims

New York State Court of Claims

110 SAND CO. V. THE STATE OF NEW YORK, #2007-033-251, Claim No. 112176, Motion No. M-71958


Case Information

110 SAND CO.
Claimant short name:
110 SAND CO.
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

James J. Lack
Claimant’s attorney:
Stim & Warmuth, P.C.By: Glenn P. Warmuth, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 6, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for damages arising from the alleged non-payment of invoices by defendant at the landfill belonging to 110 Sand Co. (hereinafter "claimant") located in Melville, New York.

Claimant moves for summary judgment and to dismiss all of defendant’s affirmative defenses pursuant to CPLR 3212[1]. In support of its motion, claimant argues that defendant’s employees dumped 597 cubic yards of asphalt and non-recyclable mix at its landfill between September 15, 2005 and November 1, 2005. According to claimant, defendant has been a customer at the landfill since 1992. Each time a truck enters claimant’s yard it receives a ticket. Claimant prepares invoices based upon the ticket and bills defendant. Claimant’s suit is based upon the non-payment of two invoices dated September 17, 2005, and two invoices dated September 24, 2005.[2] The unpaid invoices total $18,042.00. Claimant served the claim on defendant on April 7, 2006 and filed the claim April 5, 2006.

In opposition, defendant argues that because the invoices total over $15,000.00, defendant would not be liable for the money because purchases over $15,000.00 need to be advertised and put out to bid.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

From the evidence presented to the Court, it is clear that a significant issue of fact exists in this matter, specifically, the relationship between the parties and the timeliness of the claim in regard to the individual invoices. Claimant pleads that the claim accrued on November 5, 2005[3] or later when the invoices were rejected. However, the November 5, 2005 invoice was paid prior to the claim being served and filed. It is unknown if there is a specific rejection of the other invoices at a later date. It is unclear if the invoices were sent at or about the date reflected on them or if they were held by claimant.

In examining the affirmative defenses (1 and 3 - 7), the Court grants claimant’s motion to dismiss based upon defendant’s lack of opposition. Affirmative defense 2 is not dismissed based upon what has previously been stated.

Based upon the foregoing, claimant’s motion to dismiss the affirmative defenses is granted in part and for summary judgment is denied.

June 6, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on claimant’s motion: Notice of Motion dated July 5, 2006 and filed July 7, 2006; Affirmation in Support of Glenn P. Warmuth, Esq. with annexed Exhibits A-I dated July 5, 2006 and filed July 7, 2006; Affidavit in Support of Carol Golden sworn to June 20, 2006 and filed July 7, 2006; Affirmation in Opposition of John L. Belford, IV, Esq. with annexed Exhibits A-B dated February 20, 2007 and filed February 23, 2007; Affirmation in Reply of Glenn P. Warmuth, Esq. dated February 23, 2007 and filed February 26, 2007.
[2].Claimant had an additional invoice dated November 5, 2005, but that has been paid.
[3].The claim says the claim accrued on “November 5, 2006" however, given the dates of the invoices and that the claim was served and filed in April 2006, the Court realizes this was an error on claimant’s part.