New York State Court of Claims

New York State Court of Claims

FISH BAIT COMPANY v. THE STATE OF NEW YORK, #2008-033-303, Claim No. 114588, Motion No. M-74694


Case Information

Claimant short name:
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:
Jerry M. Mims, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Patricia M. Hingerton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 27, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for money damages by Fish Bait Company, Inc. (hereinafter “claimant”) due to the alleged breach of contract, fraud and misrepresentations by the State of New York (hereinafter “defendant”). The contract was entered by and between the parties on July 23, 2001. It allowed claimant to operate concession stands at Captree State Park, Babylon, New York and at Jones Beach State Park, Wantagh, New York.

The claim was filed in the Clerk’s Office on December 11, 2007.[1] The Court is not aware of the date the claim was served on defendant. The Court has no affidavit of service in its file and defendant did not recite the date of service in its motion papers. Prior to serving and filing its answer, defendant moves this Court to dismiss the action for failure to state a cause of action[2].

Court of Claims Act §10(4) states :
A claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed and served upon the attorney general within six months after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after such accrual.

Court of Claims Act §11(b) states:

The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.

Court of Claims Act §11(c) states:

Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in subdivision a of this section, or (iii) the verification requirements as set forth in subdivision b of this section is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.

In examining the “Notice of Claim” in the Court’s file and the claim filed in the Clerk’s Office, the Court notes there are no dates alleged for the various causes of action alleged by claimant. Such recitation of the dates of the alleged breaches, frauds and/or misrepresentations are necessary pursuant to Court of Claims Act §11(b). The failure to include all that is required renders the claim jurisdictionally defective (see Lepkowski v State of New York, 1 NY3d 201). However, defendant failed to raise such objection in the instant motion. Thus, defendant has waived any objection to the time limits of Court of Claims Act §10.

Claimant alleges four causes of action in its claim. The first cause of action is that defendant presented claimant with false and misrepresented data prior to claimant entering the contract with defendant. This data misled claimant as to the revenue projections for claimant’s business. The second cause of action alleges claimant was told prior to entering the contract that no outside vendors would be allowed into defendant’s facilities to compete with claimant. However, claimant alleges, that outside vendors were allowed access into defendant’s facilities and competed with claimant without paying the same fees required by claimant. The third cause of action alleges that the electrical systems at the fuel docks and the docks were in need of repair. The fourth cause of action is the attendance numbers relied on by claimant to enter the contract were grossly exaggerated.

In support of its motion to dismiss, defendant argues that claimant has failed to state any cause of action for a breach of contract, fraud or misrepresentation for which defendant can be found liable.

To properly plead causes of action for breach of contract, fraud and misrepresentation, the claim must be pled with specificity (767 Third Ave. LLC v Greble & Finger, LLP, 8 AD3d 75). Claimant must allege which portions of the contract were breached, the failure to do so is fatal to its cause of action for breach of contract (Id.).

The causes of action for breach of contract appear to be the second and third causes of action. In defense of the second cause of action, defendant points to the contract. The contract contains an “integration clause” (defendant’s Exhibit A ¶37 of the General Conditions). This clause integrates or merges states that all agreements and understandings between the parties are contained in the written agreement which supercedes any prior agreements or understandings between the parties. In examining the contract document (defendant’s Exhibit A), the Court finds no grant of being the exclusive vendor to claimant.

As to the third cause of action, defendant argues that all maintenance and repairs are the responsibility of the claimant according to the contract (defendant’s Exhibit A General Conditions ¶6; Special Conditions ¶13).

The first and fourth causes of action allege fraud and misrepresentation by defendant. The causes of action appear to be sufficiently pled. Claimant alleges that he was presented with false and fraudulent data prior to entering the contract which he relied upon to his detriment.

As previously noted, the contract was entered into on July 23, 2001. The fraud and misrepresentation occurred prior to that date. As the fraud occurred approximately seven years ago, it is past any arguable statute of limitations of CPLR 213(8). No judgment can be found by this Court against the defendant due to the expiration of the statute of limitation, despite defendant’s failure to raise the defense [Court of Claims Act §12(2)].

Claimant interposes no opposition to the instant motion.

Based upon the foregoing, defendant’s motion to dismiss the claim is granted. The Clerk of the Court is directed to close the file.

June 27, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The Court notes that a “Notice of Claim” was also received in the Clerk’s Office on December 6, 2007.
[2].The following papers have been read and considered on defendant’s motion: Notice of Motion to Dismiss dated March 18, 2007 [sic] and filed March 19, 2008; Affirmation in Support of Motion to Dismiss of Patricia M. Hingerton, Esq. with annexed Exhibits 1(A-F) and 2 dated March 18, 2008 and filed March 19, 2008; Defendant’s Memorandum of Law in Support of Motion to Dismiss the Claim dated March 18, 2008 and received March 19, 2008.