New York State Court of Claims

New York State Court of Claims

CHURCH AVE. MERCHANTS v. STATE OF NEW YORK, #2007-039-054, , Motion No. M-73307


Synopsis


Movant’s application for permission to serve and file a late claim arising out of contracts movant entered into with the New York State Education Department is granted. Although movant’s excuse for the delay - its efforts to resolve the dispute without resort to the courts - does not constitute a valid excuse, the proposed claim appears to be meritorious with respect to causes of action for breach of contract, negligence, quasi-contract, conversion and unjust enrichment.

Case Information

UID:
2007-039-054
Claimant(s):
CHURCH AVENUE MERCHANTS BLOCK ASSOCIATION, INC.
Claimant short name:
CHURCH AVE. MERCHANTS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73307
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Chadbourne & Parke LLPBy: Thomas J. Hall, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Ellen S. MendelsonAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Church Avenue Merchants Block Association, Inc. (hereinafter movant) seeks an order from the Court granting it permission to file a late claim arising out of contracts movant entered into with the New York State Education Department (hereinafter SED) to administer the Elementary and Secondary Education Act I Even Start Project (hereinafter Even Start Project) and the Even Start Family Literacy Demonstration Site (hereinafter Demonstration Site). In its proposed claim, movant seeks damages for, among other things, unreimbursed expenditures related to the administration of the Demonstration Site for the fiscal year 2003-04 and misappropriation by the State (hereinafter defendant) of movant’s Even Start training modules.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). When deciding whether to grant an application to file a late claim, the court is required to consider
“among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 whether the claimant has any other available remedy” (Court of Claims Act § 10 [6]).

“No single factor is deemed controlling, as the presence or absence of any one factor is not determinative” (Beckford v State of New York, 264 AD2d 841 [1999]; see also Bay Terrace Coop. Section IV v New York State Empls. Retirement Sys., 55 NY2d 979, 981 [1982]). “One of the factors to be considered is whether the claim has the appearance of merit, as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant’s motion” (Savino v State, 199 AD2d 254, 254-255 [1993]. “In order for a claim to ‘appear to be meritorious’ . . . it must not be patently groundless, frivolous, or legally defective, and . . . the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists” (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]).

Based upon the foregoing principles, the Court concludes that movant’s application for permission to file a late claim must be granted. Although movant’s excuse for the delay - its efforts to resolve the dispute without resort to the courts - does not constitute a valid excuse, the proposed claim appears to be meritorious. More specifically, with respect to movant’s causes of action for breach of contract, negligence and quasi-contract, the parties do not dispute that a contract was formed for services related to the Demonstration Site Project for the 2003-04 fiscal year, that movant performed those services and that, upon approval by defendant of movant’s expenditures, movant was entitled to reimbursement for its services under the contract. Nor do the parties dispute that movant did not receive reimbursement with respect to the Demonstration Site contract for the 2003-04 fiscal year. In support of its application, movant offers copies of the Demonstration Site contract, its final expenditure report for services rendered in connection with the Demonstration Site contract and correspondence from SED denying movant’s request for reimbursement.

The proposed claim also appears to be meritorious with respect to movant’s causes of action for conversion and unjust enrichment. Movant alleges that it had exclusive rights of certain training modules that were created as part of its obligations under the Demonstration Site contract. Movant further alleges that defendant unlawfully converted those training modules, and has been unjustly enriched therefor, after defendant refused to compensate claimant for the cost of developing the modules and incorporated them into its own training program. In addition to the above items offered in support of the application, movant also offers copies of the contract it entered into with Jessica Fitzpatrick for, among other things, development of the training modules, and the Even Start materials it alleges are now used throughout New York State and include the training modules created by Fitzpatrick.

In opposition to the application, defendant offers the affidavit of Margaret Zollo, Assistant Director of Financial Administration for SED. Although Zollo’s affidavit creates issues of fact regarding, among other things, whether movant submitted its final expenditure report to SED in a timely manner, such proof does not detract from the claim’s appearance of merit sufficient to warrant denial of the application. Movant need not establish a prima facie case to prevail on a late claim application, but must only show that the claim has the appearance of merit (see Matter of Santana v New York State Thruway Auth., supra at 11-12).

Additionally, upon consideration of the remaining factors, including whether defendant had adequate notice of the essential facts constituting the proposed claim and an adequate opportunity to investigate the circumstances underlying the claim, and whether defendant will suffer any prejudice by the late filing of a claim, the Court concludes that movant has met its burden to warrant granting its application. Notably, defendant does not offer any opposition to movant’s application with respect to these remaining factors. Nor is denial of the application warranted due to the availability of an article 78 proceeding at one time (see Movers v State, 226 AD2d 616, 617 [1996]). Accordingly, it is hereby

ORDERED that M-73307 is granted; and it is further

ORDERED that movant is to serve and file a proposed claim containing the above causes of action in the manner required by Court of Claims Act § 11 within thirty days of the filing of this decision and order.


January 11, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion for Leave to File Late Claim dated April 30, 2007;
  2. Affirmation in Support of Motion for Permission to File Late Claim by Thomas J. Hall, Esq., dated April 30, 2007 with exhibits;
  3. Affirmation in Opposition by Ellen S. Mendelson dated on July 11, 2007 with exhibit; and
  4. Reply Affirmation in Support of Motion for Permission to File Late Claim by Dorollo Nixon, Jr., dated July 27, 2007.