New York State Court of Claims

New York State Court of Claims

247-59 WEST LLC v. THE STATE OF NEW YORK, #2008-041-042, Claim No. None, Motion No. M-75308


Synopsis

Application to file late claim seeking additional rent allegedly due under lease is granted where claim appears potentially meritorious and defendant will suffer no prejudice, despite lack of reasonable excuse for delay in filing claim.

Case Information

UID:
2008-041-042
Claimant(s):
247-59 WEST, LLC and LAYTNER’S LINEN SHOPPE INC.
1 1.The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
247-59 WEST LLC
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75308
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
FINKEL GOLDSTEIN ROSENBLOOM & NASH, LLPBy: J. Ted Donovan, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Ellen S. Mendelson, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 21, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimants move for permission to file a late claim. The proposed claim alleges that claimants were the lessors of certain real property located in New York City and that defendant was the lessee of that property. The lease provided for yearly payment of additional rent by defendant based upon increased operating costs as compared to an agreed-upon base year. Beginning in February 2006, claimants sought additional rent based upon increased operating costs for the year ending December 31, 2005. The parties disagreed as to the amount of the additional rent owed although it appears that defendant concedes that some additional rent is owed. In 2007, claimants sought additional rent based upon increased operating costs for the year ending December 31, 2006. The parties again disagreed as to the amount of the additional rent owed although it again appears that defendant concedes that some additional rent is owed.

Claimants sued defendant for the two years of additional rent in New York County Supreme Court but the action was dismissed, without prejudice to this application, on stipulation of the parties as the Court of Claims has exclusive jurisdiction over claims for money damages against the State of New York.

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim “at any time 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.”

The causes of action for yearly additional rent based upon operating cost escalations arose on December 31, 2005 and December 31, 2006, respectively, and are contractual in nature. The application is timely pursuant to the six-year statute of limitations for contractual actions provided by CPLR § 213.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall 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.”
In reviewing a late claim application, “the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, “nothing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

The defendant had timely “notice of the essential facts constituting the claim” and “an opportunity to investigate the circumstances underlying the claim” because the parties have exchanged correspondence and negotiations over the claim from the time the claim arose. The parties have engaged in very recent litigation over the claim in supreme court. The defendant does not assert that it would suffer any prejudice were the late claim application to be granted, nor, in view of the facts of this case, could defendant reasonably make such an argument.

Claimants have no other available remedy as evidenced by the supreme court dismissal. Although defendant suggests in opposition to the motion that the claim lacks merit, it has not offered an affidavit disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweichert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).

In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have “the appearance of merit.” Section 10 (6) requires that the proposed claim not be “patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Accordingly, the proposed claim is meritorious for purposes of section 10 (6).

Defendant’s only other objection to the application is that claimant has failed to state a “reasonable excuse for the delay in filing.” Although defendant is correct that claimants have failed to set forth a reasonable excuse for their failure to timely file and serve the claim, “the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief” (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).

Upon balancing all of the factors in Court of Claims Act § 10 (6), the Court grants the motion to file and serve a late claim. Claimants are directed to file and serve the proposed claim within forty-five (45) days of the issuance of this decision and order, in compliance with Court of Claims Act § 11 (b).


October 21, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion, filed July 31, 2008;
  2. Affidavit of Philip Katz, sworn to July 25, 2008, and annexed exhibits;
  3. Affirmation of Ellen S. Mendelson, dated September 16, 2008;
  4. Reply Affirmation of J. Ted Donovan, dated October 6, 2008.