New York State Court of Claims

New York State Court of Claims

CREATIVE COMMUNICATIONS ASSOCIATES v. STATE OF NEW YORK, #2009-037-001, Claim No. NONE, Motion No. M-75918


Synopsis


Movant’s motion for permission to late file a breach of contract claim granted.

Case Information

UID:
2009-037-001
Claimant(s):
CREATIVE COMMUNICATIONS ASSOCIATES
1 1.Movant’s original motion papers referred to the Defendant as Buffalo State College. Defendant’s opposing papers and Movant’s reply papers, together with Movant’s amended proposed claim, refer to the Defendant as the State of New York. Because the State of New York is the only proper Defendant, the caption has been changed.
Claimant short name:
CREATIVE COMMUNICATIONS ASSOCIATES
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Movant’s original motion papers referred to the Defendant as Buffalo State College. Defendant’s opposing papers and Movant’s reply papers, together with Movant’s amended proposed claim, refer to the Defendant as the State of New York. Because the State of New York is the only proper Defendant, the caption has been changed.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75918
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Bartlett, Pontiff, Stewart & Rhodes, P.C.By: Malcolm B. O’Hara, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. LonerganAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 26, 2009
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Movant’s motion to late file a claim:
  1. Notice of motion and supporting affidavits of Vicki Clark sworn to November 26,
2008, with annexed Exhibits A-E and Malcolm B. O’Hara, Esq. sworn to November 26, 2008, with annexed Exhibits A-D;

  1. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn to
January 6, 2009, with annexed Exhibit A;

  1. Reply affidavit of Malcolm B. O’Hara. Esq. sworn to January 12, 2009, with annexed
Exhibits A-B.


Movant, Creative Communications Associates, brings this motion seeking permission to late file a claim against the State of New York for breach of a purchase order dated July 16, 2007 (Exhibit A to the Clark affidavit) by which Movant was to perform certain services for Buffalo State College.

Initially, the Court must determine whether Movant’s motion to late file a claim was filed within the period of time when “a like claim against a citizen of the state” would not be precluded by the applicable CPLR statute of limitations (Court of Claims Act § 10 [6]). The failure to file this type of motion within the prescribed time period creates a fatal jurisdictional defect (Byrne v State of New York, 104 AD2d 782 [1984], lv denied 64 NY2d 607 [1985]). Movant’s claim sounds in breach of contract which is governed by the six-year statute of limitations set forth in CPLR § 213. According to Movant, the claim accrued on April 30, 2008, at the earliest, when Defendant neglected to pay a second invoice dated March 31, 2008 (Exhibit B to the Clark affidavit)[2] which called for payment within thirty (30) days. Because Movant’s motion was filed within six years of April 30, 2008, it is timely.

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving 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 substantial prejudice to the State resulted from the failure to timely serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. The only excuse offered is law office failure and unfamiliarity with the Court of Claims Act. Neither is an adequate excuse for failing to comply with the filing and service requirements of the Court of Claims Act (Sevillia v State of New York, 91 AD2d 792 [1982]; Nyberg v State of New York, 154 Misc 2d 199 [1992]). The lack of an acceptable excuse weighs against Movant’s application.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant alleges that Defendant was put on notice of its claim within the six-month time frame for commencing a breach of contract claim pursuant to § 10 (4) of the Court of Claims Act by the filing of a summons and complaint in State Supreme Court of Albany County on September 24, 2008 and personal service on the Defendant on October 2, 2008. Service of the Supreme Court action, however, was made on Buffalo State College and not on the Attorney General’s Office as mandated by the Court of Claims Act. Attached to attorney O’Hara’s affidavit sworn to on November 26, 2008, however, is a copy of a letter dated October 22, 2008 from Assistant Attorney General Michael J. Russo to Movant’s counsel regarding the complaint filed in State Supreme Court. Thus, within the six-month statutory period for commencing an action against the State in this Court, the Attorney General’s Office was aware that Movant intended to commence a breach of contract action arising out of the July 16, 2007 purchase order. Defendant had timely notice, an opportunity to investigate, and would not be substantially prejudiced if late claim relief were granted. These three factors weigh in favor of Movant’s application.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Movant must demonstrate that the proposed claim is not “patently groundless, frivolous, or legally defective” and that there is reasonable cause to believe that a valid cause of action exists (id. at 11). In support of its application, Movant provided the affidavit of Vicki Clark, Movant’s controller, who attested to the existence of a contract and the performance of the services ordered. Attached to her affidavit as exhibits are copies of the original purchase order and various invoices for services rendered. In opposition, Defendant’s counsel alleges upon information and belief that the understanding of the parties was unilaterally altered by Movant, that the invoices were noticed to the wrong entity, that Movant billed for services never approved by Defendant, and that the finance charges added by Movant exceeded the per annum percentage applicable to Defendant. These arguments would carry more weight if they had been attested to in an affidavit of a person with personal knowledge. At best, they raise questions of fact better suited to resolution at trial or by a summary judgment motion. Because Movant need not establish a prima facie case to prevail on a late claim application, and because it cannot be concluded on the evidence presented that a breach of contract claim would be groundless, frivolous or legally defective, the appearance of merit factor weighs in favor of Movant’s application.

With respect to the final factor, Defendant argues that Movant may have a viable action in State Supreme Court. The possible existence of an article 78 proceeding, however, does not warrant an automatic denial of Movant’s application (see Roselli Movers v State of New York, 226 AD2d 616 [1996]).

Attached to attorney O’Hara’s November 26, 2008 affidavit as Exhibit D is a proposed notice of claim and a proposed claim naming Buffalo State College as the party Defendant. The proper Defendant, however, is the State of New York. Movant realized its mistake in this regard because attached to attorney O’Hara’s January 12, 2009 reply affidavit as Exhibit B is a revised notice of claim and a revised proposed claim naming the State of New York as the sole Defendant. Unfortunately, Movant is apparently still confusing practice in State Supreme Court against a municipality with practice in the Court of Claims against the State of New York. An action in the Court of Claims is commenced by the filing and service of a claim, not a notice of claim, and Court of Claims Act § 10 (6) only permits remedial relief to file and serve a late claim.[3]

After balancing the statutory factors, the Court is satisfied that they weigh in favor of Movant’s motion for permission to late file a claim. Movant is therefore directed to file and serve a properly captioned claim which is in conformity with §§ 10, 11 and 11-a of the Court of Claims Act within sixty (60) days after this decision is filed.



January 26, 2009
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2]. An earlier invoice dated December 17, 2007 was paid by the Defendant (see Clark affidavit).
[3]. The Court of Claims Act, the Uniform Rules for the Court of Claims, and answers to frequently asked questions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.