New York State Court of Claims

New York State Court of Claims

NORTHERN TREE SERVICE v. THE STATE OF NEW YORK, #2009-029-069, Claim No. 115505, Motion No. M-77095


Synopsis


Late filing motion granted. Claimants allege breach of contract to provide snow removal services at OMRDD facility. Motion opposed only by affirmation of counsel; no submission from anyone with knowledge in opposition to motion. Claimant’s allegations deemed true.

Case Information

UID:
2009-029-069
Claimant(s):
NORTHERN TREE SERVICE II, INC., TODD AND SHAWN-MARIE PEZZEMENTI
Claimant short name:
NORTHERN TREE SERVICE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115505
Motion number(s):
M-77095
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
SHAWN-MARIE PEZZEMENTI, Claimant pro se
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 23, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move for permission to file a late claim alleging that they had a contract for snow removal and ice control services at the Letchworth Village campus of the New York State Office of Mental Retardation and Developmental Disabilities which was breached when defendant failed to pay their invoice for work performed on January 14, 2008. The claim was filed July 10, 2008 but was not served until November 25, 2008. In lieu of answering the claim, defendant submitted a motion to dismiss for lack of jurisdiction based on claimants failure to serve and file their claim in a timely manner. The motion was denied (M-76039, Decision and Order dated March 18, 2009) because defendant did not meet its burden of proof, based on the papers submitted on that motion, that the claim was untimely. Specifically, the claim alleged that a notice of intention was served on June 5, 2008 while defense counsel denied that a notice of intention had been properly served.

Defendant’s answer, alleging that the court lacks jurisdiction because claimants’ failed to serve the claim or the notice of intention on the Attorney General was filed April 29, 2009.

A conference was held on June 5, 2009. At the conference, claimants conceded that the notice of intention had been served directly on OMRDD, not on the Attorney General as required by law. Claimants also maintained that the claim accrued on April 15, 2008, when the contract ended and all balances were due. Claimants were advised at the conference that service on OMRDD, rather than on the Attorney General, did not comport with the requirements of the Court of Claims Act and that such service was ineffectual to extend the time for proper service and filing of the claim beyond six months from the claim’s accrual on April 15, 2008, when claimants allege all balances were due (Court of Claims Act section 10[4]). The instant motion ensued.

Court of Claims Act section 10(6) grants the court the discretion to allow the filing and service of a late claim after consideration of all relevant factors, including whether claimants’ delay was excusable, whether defendant had timely notice of and the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether claimants have an alternate remedy.

Although the court agrees with defendant that the circumstances alleged by claimants (that they were advised by an unidentified clerk that service on OMRDD was sufficient) do not render their delay excusable, the court also finds that the other statutory factors all weigh in favor of granting the application.

Initially, the court notes that while claimants did not append an additional copy of their claim to the motion papers and label it “proposed claim,” it is apparent that the “claim proposed to be filed” is the claim that was filed on July 10, 2008 and served on the Attorney General on November 25, 2008. Defendant’s hyper-technical contention that the motion must be denied because claimants did not attach an additional copy of the claim, labeled “proposed claim,” to their motion papers is rejected.

Claimants allege that they had a written contract with OMRDD for snow and ice removal services at Letchworth Village, that there was a snow and ice storm on January 14, 2008 with 2.4 inches accumulation and they incurred damages of $3,300.00 as the result of their expenditures for personnel, equipment and materials in clearing the ice and snow. They further allege that Karl G. Koller, Business Officer at Letchworth Village, refused to pay because he alleged that there was no need for them to plow.

In response to these allegations, defendant alleges that a general allegation of negligence is insufficient to establish a meritorious cause of action (even though the proposed claim sounds in breach of contract, not in negligence), that claimants allege no facts “in their moving papers” (ignoring the allegations contained in the verified claim), and that claimants have not submitted a copy of the alleged contract.

“Facts stated in a motion for leave to file a late claim against the State are deemed true for purposes of motion, when not denied or contradicted in opposing affidavits” (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976; see also Cole v State of New York, 64 AD2d 1023). Defendant has not submitted an affidavit from anyone with knowledge of the relevant facts and circumstances, instead relying solely on the affirmation of counsel who is without personal knowledge of these events. Thus, claimants’ allegations with respect to the merits of the claim and notice to the State stand unrefuted.

The court finds that defendant had timely notice of claimants’ allegations and the opportunity to investigate by virtue of the timely service of the notice of intention on OMRDD within the statutory six month filing period. There is no indication that defendant would suffer any prejudice whatsoever, much less the substantial prejudice referenced in the statute, should the motion is granted.

A proposed claim has the appearance of merit for late filing purposes if it is not patently groundless, frivolous or legally defective and there is reason to believe a cause of action may exist (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Based on the unrefuted allegations of the verified claim, claimants’ submission meets this standard. As the Second Department has noted, where the delay was minimal and the State would suffer no prejudice, the fact that there may be issues of fact as to the merits of the claim is insufficient grounds for denial of a late filing application (Jomarron v State of New York, 23 AD3d 527).

Finally, the court notes that claimants have no alternate remedy, as the Court of Claims is the sole forum in which to bring a breach of contract claim against the State of New York.

Accordingly, the motion is granted. Under these circumstances, there is no need to require dismissal of the filed claim (which defendant does not request) and initiation of a new claim, which would entail payment of a second filing fee. Accordingly, claimants are directed to serve a copy of the claim upon the Attorney General by certified mail, return receipt requested, within 40 days of the filing date of this decision and order. Thereafter, defendant shall have 40 days in which to serve an answer. If no answer is filed, the answer filed on April 29, 2009 shall stand.


October 23, 2009
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims


Papers considered:


Notice of Motion and Affidavit

Affirmation in Opposition and Exhibits

Reply Affidavit

Verified Claim filed July 10, 2008

Verified Answer filed April 29, 2009