Defendant's motion to dismiss claim which failed to comply with the pleading requirements of Court of Claims Act § 11 (b) was granted. Claimant's motion for late claim relief or to amend claim was denied. Late claim motion was unsupported by admissible evidence regarding the potential merit of claim and cannot amend jurisdictionally defective claim.
|Claimant(s):||FRAMAN MECHANICAL, INC.|
|Claimant short name:||FRAMAN MECHANICAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Steven A. Berkowitz & Associates, P.C.
By: Ira E. Dorfman, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Frederick H. McGown, III, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 23, 2010|
|See also (multicaptioned case)|
Defendant moves for an order dismissing the claim pursuant to CPLR 3211 (a) (2), (7) and (8) on the ground that it fails to comply with the pleading requirements set forth in Court of Claims Act 11 (b). Claimant cross-moves to amend its claim and to file a late claim.
Claimant, Framan Mechanical, Inc., allegedly provided labor and materials pursuant to a contract with the State of New York by and through the Office of General Services (OGS) for the renovation of building number 19 at the Kingsboro Psychiatric Center located in Brooklyn, New York (defendant's Exhibit 1, claim, ¶ 4). The claim filed on July 28, 2009 alleges two causes of action for breach of contract, the first seeking damages for "[a]dditions and deletions to the scope of work under the Contract" and the second seeking damages for "delays and design changes that occurred while completing the Project" (defendant's Exhibit 1, claim, ¶¶ 12, 22). Claimant seeks to recover $161,137.28 on the first cause of action and $1,082,389.22 on the second cause of action. Claimant also alleges causes of action for unjust enrichment and quantum meruit based on the same facts which underlie the breach of contract causes of action. An accrual date of June 18, 2009 is alleged in the claim.
In support of its motion defendant argues that the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) because it fails to 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' " (affirmation of Frederick McGown, III, dated September 10, 2009, ¶ 4, quoting Court of Claims Act § 11 [b]). Defendant additionally contends that the claim fails to state a cause of action for breach of contract because it fails to allege the provisions of the contract which were breached.
Claimant states in opposition to the motion and in support of its cross-motion that the claim accrued on March 26, 2008(2) , the date it completed the work and all "closeout" documents were sent to OGS. Frank Manginelli, President of Framan Mechanical, Inc., states that "[a]lthough the claim accrued on or about March 26, 2008, FRAMAN did not choose to file a claim immediately, reasonably believing that OGS would honor its contractual obligations" (affidavit of Frank Manginelli sworn to October 29, 2009, ¶ 6). As a result, "FRAMAN patiently sought payment for its work. However, it became clear on or around June, 2009, that OGS had no intention to pay FRAMAN for its work" (affidavit of Frank Manginelli sworn to October 29, 2009, ¶ 8).
In support of its cross-motion claimant submits both a copy of the contract and its proposed "First Amended Claim". The proposed claim adds allegations regarding the specific paragraphs of the contract which claimant alleges were breached. Specifically, claimant asserts defendant breached paragraphs 21.1, 21.4 and 21.5 of the contract in failing to approve and pay: (1) progress payments for the work, (2) the contract balance upon substantial completion of the work and (3) the remaining contract balance within 30 days of the physical completion report (see claimant's Exhibit A annexed to affirmation of Ira E. Dorfman dated November 6, 2009, proposed claim, ¶¶ 11-14). In addition to referencing the provisions of the contract, claimant attaches as an Exhibit to its proposed claim what purports to be a delineation of the damages related to the claim.
The State's waiver of immunity from suit is contingent upon compliance with the specific conditions set forth in article II of the Court of Claims Act, which includes the pleading requirements set forth in § 11 (b) (Court of Claims Act § 8; Lepkowski v State of New York, 1 NY3d 201 ; Davis v State of New York, 64 AD3d 1197  ). "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Section 11(b) of the Court of Claims Act requires that a claim state "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." "Failure to strictly comply with these substantive pleading requirements is a jurisdictional defect warranting dismissal for lack of subject matter jurisdiction" (Dinerman v NYS Lottery, 69 AD3d 1145, 1146  [internal quotation marks and citation omitted]; Nasir v State of New York, 41 AD3d 677 ; Mujica v State of New York, 24 AD3d 898 ). The guiding principle in determining the adequacy of a claim is whether it is sufficiently definite " 'to enable the State. . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . ." (Lepkowski v State of New York, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 ). While pleading with "absolute exactness" is not required, a cause of action must be pled with sufficient specificity so as not to mislead, deceive or prejudice the rights of the State (Heisler v State of New York, 78 AD2d at 767). Here, defendant contends that the allegations in the claim are insufficiently specific to meet this standard because no facts are alleged which would enable the defendant to determine the date the claim accrued or otherwise determine its liability. The Court agrees.
The allegations in the claim are entirely conclusory and fail to set forth sufficient facts to enable the defendant to determine the basis for the claim. While damages are sought for "[a]dditions and deletions" to the scope of the work under the Contract (defendant's Exhibit 1, claim, ¶ 12), neither the nature of the work nor the date it was performed are alleged in the claim. The claim for delay damages (second cause of action) is similarly deficient. Moreover, there is no explanation in the claim for how the damages were calculated nor any information from which the date of accrual could be gleaned. To the extent the claim alleges causes of action for unjust enrichment and quantum meruit, no factual basis for these claims separate and apart from the breach of contract claims is alleged. As it is not defendant's responsibility " 'to ferret out or assemble information that [Court of Claims Act §] 11 (b) obligates the claimant to allege' " the Court concludes that the claim is insufficiently particular to meet the pleading requirements of § 11 (b) (Dinerman v NYS Lottery, 69 AD3d at 1146, quoting Lepkowski v State of New York, 1 NY3d at 208).
That branch of the claimant's cross-motion seeking leave to amend the claim must be denied as it is well settled that a jurisdictionally defective pleading may not be cured by amendment (Hogan v State of New York, 59 AD3d 754 ; Nasir v State of New York, supra; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 ; Grande v State of New York, 160 Misc 2d 383 [Ct Cl 1994]). Accordingly, defendant's motion is granted and the claim is dismissed.
Turning to claimant's cross-motion for late claim relief, subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."
The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 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." Claimant alleges in the proposed claim (Exhibit A annexed to the affirmation of Ira E. Dorfman dated November 6, 2009) that the breach of contract claim accrued on March 26, 2008.(3) Applying the six-year statute of limitations set forth in CPLR § 213 applicable to both breach of contract and implied contract claims, claimant's motion is timely.
Addressing the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 ). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 ). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 ).
Claimant indicates that its delay in filing the claim was reasonable because it believed OGS would honor its claim. In the Court's view, such an excuse is unreasonable. No detail is provided regarding the activity which occurred in the six-month period following the alleged date of accrual (see Court of Claims Act § 10 ) and the Court is unable to conclude based upon the scant facts provided that the delay was reasonable. Notably, claimant could have extended its time to file a claim by the mere expedient of serving a notice of intention to file a claim (id.). Similarly deficient is claimant's counsel's conclusory allegations that the defendant had notice and an opportunity to investigate the claim. These allegations are unsupported by admissible evidence and the letters and charts submitted by counsel in reply fail to contain sufficient particulars of the claim to permit the Court to conclude that the defendant had notice of the claim and an opportunity to investigate the underlying circumstances. As a result, the Court cannot conclude that the defendant will suffer no undue prejudice in the event late claim relief is granted.
Most importantly, the potential merit of the proposed claim is not apparent. The affidavit of Frank Maginelli, President of Framan Mechanical , Inc., fails to address the merits of the proposed claim, which is verified only by counsel. Nor do the various letters and charts submitted under cover of counsel's reply affirmation enable the Court to determine the claim's potential merit.
Finally, the causes of action sounding in unjust enrichment and quantum meruit are based entirely on the same facts as the breach of contract claim and therefore lack merit (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382  [it is impermissible to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement]).
Lastly, claimant's counsel indicates in a reply affirmation that no alternative remedies are available.
As the totality of factors weigh against granting claimant's cross-motion for late claim relief, it is denied.
Based on the foregoing, defendant's motion to dismiss the claim is granted and the claimant's cross-motion for leave to amend its claim and to file a late claim is denied.
March 23, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1) Notice of Motion dated September 10, 2009;
2) Affirmation of Frederick H. McGown dated September 10, 2009
3) Notice of Cross-Motion dated November 9, 2009;
4) Affidavit of Frank Manginelli sworn to October 29, 2009
5) Affirmation of Ira E. Dorfman dated November 6, 2009
6) Affirmation In Opposition of Frederick H. McGown dated November 23, 2009;
7) Affirmation in Reply of Ira E. Dorfman dated November 30, 2009.
2. Although the affidavit of Frank Manginelli sworn to on October 29, 2009 references the date of accrual as both March 26, 2008 and March 28, 2008, the affirmation of Ira E. Dorfman dated November 6, 2009 references only March 26, 2008 as the date of accrual.
3. The Court accepts the accrual date designated by the claimant as neither the claim nor the papers submitted on the motion permit a determination of the actual accrual date.