New York State Court of Claims

New York State Court of Claims

PECORARO v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION, #2008-010-042, Claim No. 114090, Motion Nos. M-74286, CM-74563


Synopsis


Defendant’s motion to dismiss granted, claim untimely; claimant’s motion to file a late claim denied, no established appearance of merit.

Case Information

UID:
2008-010-042
Claimant(s):
VIVIAN PECORARO
Claimant short name:
PECORARO
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114090
Motion number(s):
M-74286
Cross-motion number(s):
CM-74563
Judge:
Terry Jane Ruderman
Claimant’s attorney:
LAW OFFICES OF GEORGE DAVID ROSENBAUMBy: Adam L. DiLeo, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Wanda Perez-Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 15, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendant’s motion to dismiss and claimant’s cross-motion for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Notice of Cross-Motion, Attorney’s Supporting Affirmation in Opposition to Motion and in Support of Cross-Motion and Exhibits..........................................................2

Attorneys’ Reply Affirmation in Further Support of Motion and in Opposition to Cross-Motion............................................................................................................3
Background
This claim arises out of a contract entered into in August 1998[1] between claimant and Anthony Adinolfi and/or Dirtman Enterprises, Inc.(Adinolfi) for the widening of claimant’s driveway and leveling of claimant’s backyard. In September 1998, a Stop Work Order was issued by the Town of Mount Pleasant and criminal proceedings were subsequently commenced in Mount Pleasant Town Court against Adinolfi for its violation of the Environmental Conservation Law stemming from its use of waste as fill on claimant’s property. DEC also commenced administrative proceedings against Adinolfi. On October 14, 2004, Adinolfi pled guilty to a violation of the Environmental Conservation Law of unlawfully disposing more than 70 cubic yards of solid waste onto claimant’s property. As part of the plea agreement, Adinolfi was to remove the contaminated material (Defendant’s Affirmation, Ex. E).

On August 22, 2005, a notice of intention was served upon the attorney general. A claim was subsequently served and filed with the Court on August 15, 2007. The claim alleges promissory estoppel, breach of contract, negligence and equitable estoppel arising from the alleged failure of the New York State Department of Environmental Conversation (DEC) to pay for, or otherwise ensure, the remediation of claimant’s property by Adinolfi. The claim seeks money damages or specific performance of DEC’s promise to ensure that Adinolfi cleanup claimant’s property. In opposition to defendant’s argument that the claim was untimely, claimant argues that she relied upon DEC’s representations that Adinolfi would be held responsible for the costs of the cleanup.
Defendant’s Motion to Dismiss
Defendant argues that the claim accrued no later than September 28, 1998 when the Stop Work Order was issued by the Town of Mount Pleasant. Defendant also notes that this is the date of accrual found by the Supreme Court (see footnote 1, supra). Accordingly, defendant contends that the notice of intention served on August 22, 2005 was untimely and therefore the claim was untimely.

Claimant argues that the notice of intention and the claim were timely because the claim accrued “no sooner than August 16, 2005" (see Claimant’s Affirmation, ¶ 16), when the “tone of *** communications changed” and claimant first believed DEC “had breached its promise” (id. at ¶ 17). This contention, however, is belied by claimant’s act of commencing a breach of contract claim against Adinolfi on November 24, 2004 (id. at ¶ 5) at a time when claimant was supposedly relying on defendant to enforce and protect claimant’s interests.[2]

While each party has attempted to stretch the accrual date to opposite ends of the spectrum, the Court finds that, based upon the papers submitted, claimant’s causes of action accrued no later than November 24, 2004, when claimant sued Adinolfi and damages were reasonably ascertainable (see Ton-Da-Lay v State of New York, 70 AD2d 742). Accordingly, the notice of intention should have been served no later than February 22, 2005 for causes of action sounding in negligence and no later than May 24, 2005 for the causes of action based upon a breach of contract (see Court of Claims Act §§ 10[3][4] [negligence claims must be commenced within 90 days after accrual and breach of contract claims must be commenced within six months after accrual]). The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724). The requirements of § 11 of the Court of Claims Act are to be strictly construed and failure to comply with the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [“(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect”]; Welch v State of New York, 286 AD2d 496, 497-98). Here, the notice of intention and the claim were untimely. Thus, claimant did not meet the statutory prerequisites and the claim must be dismissed for lack of subject matter jurisdiction.

Accordingly, the State’s motion to dismiss is hereby GRANTED (CPLR 3211[a][2] and [a][7]).
Claimant’s Cross-Motion for Leave to Serve and File a Late Claim
Claimant opposes defendant’s motion and cross-moves for leave to serve and file a late claim. The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

Preliminarily, the Court of Claims Act requires that a motion to file a late claim be made “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” (Court of Claims Act § 10[6]). Here, having determined an accrual date of no later than November 24, 2004, claimant’s late claim application regarding the proposed negligence cause of action is untimely and the Court is without jurisdiction to hear a late claim application regarding that cause of action (see Matter of Miller v State of New York, 283 AD2d 830). Claimant’s failure to serve and file a late claim application before the expiration of the statute of limitations on a negligence claim precludes the Court from considering that part of claimant’s application based upon those facts because “[t]he failure to file such application within the proscribed time period creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief” (Bergmann v State of New York, 281 AD2d 731, 733).

As to the remaining causes of action, the Court has considered the above six factors. Claimant’s purported excuse for her delay in commencing the claim is her reliance on affirmative representations by defendant that a lawsuit was not necessary. Since claimant was represented by counsel as early as November 25, 2004; this is not a valid excuse (see Nyberg v State of New York, 154 Misc 2d 199 [possible law office failure is not a valid excuse for the failure to timely commence an action]). Nonetheless, this is but one factor to be considered.

The most significant factor to be considered is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). While claimant argues that the merit of her claim is evidenced by the millions of dollars in damage that she has sustained (Claimant’s Affirmation ¶ 36), damages are but one element of a cause of action and one element does not ipso facto establish the appearance of merit of a claim. Claimant has offered only the vaguest of averments to support her claim that DEC made express promises to her and that a contract was made between claimant and DEC. In support of her assertion of a promissory agreement between claimant and DEC, claimant attached copies of correspondence from DEC regarding claimant’s property (Claimant’s Cross-Motion, Ex. C, ¶ 19) (summarized by defendant at footnote 5 of its Affirmation in Further Support of Motion to Dismiss and Opposition to Cross-Motion). This correspondence, however, does not establish a promissory contract between DEC and claimant. Rather, the correspondence merely informed claimant of the agency’s actions regarding claimant’s property. Claimant further argues that, in exchange for DEC’s assurances that Adinolfi would clean up claimant’s property, claimant agreed to forego her right to commence an action against Adinolfi and now claimant has no other available remedy. This too is unsupported by the record. Thus, the Court finds claimant has not established that appearance of merit of her claim.
In addition to claimant’s failure to establish a promissory contract between claimant and DEC, the cause of action for promissory estoppel fails due to the lack of a clear and unambiguous promise (see Williams v Eason, 49 AD3d 866),
and
an “unconscionable injury” (Tutak v Tutak, 123 AD2d 758, 760). Claimant may not invoke equitable estoppel as it is only available against a governmental entity in rare or unusual circumstances, not present here, and claimant’s conclusory averments are not sufficiently specific with regard to fraud, misrepresentations, or deception by DEC (see Zumpano v Quinn, 6 NY3d 666, 674; Cendales v State of New York, 2 AD3d 1165). Moreover, such actions do not lie against the State (see Syracuse Community Health Ctr. v State of New York, 281 AD2d 939, 940 [“promissory estoppel is not available against a governmental entity”]).
To the extent that claimant’s fourth cause of action seeks specific performance of the alleged agreements, this Court does not have subject matter jurisdiction to grant the equitable remedy of specific performance (Court of Claims Act § 9[2]; Amberge v State of New York, 186 AD2d 962).
Accordingly, upon weighing all the factors, claimant’s motion for leave to file a late claim is DENIED (see Broncati v State of New York, 288 AD2d 172; Qing Liu v City Univ. of N.Y., 262 AD2d 473).
December 15, 2008
White Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of Claims

[1]. Claimant’s New York State Supreme Court action against Adinolfi was dismissed by Order dated March 25, 2005 on the ground that the action commenced on November 24, 2004 was untimely based upon the court’s finding that the causes of action had accrued no later than September 28, 1998, when the stop work order was issued (see Defendant’s Affirmation, Ex. F).
[2]. DEC has continued to pursue administrative remedies in this matter as evidenced by the ruling dated May 17, 2007 (see Reply Affirmation, Ex. L, ¶¶ 20-23).