New York State Court of Claims

New York State Court of Claims
PROPHY v. THE STATE OF NEW YORK, # 2019-050-048, Claim No. None, Motion No. M-94212


Case information

UID: 2019-050-048
Claimant short name: PROPHY
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended to reflect the only proper defendant, the State of New York
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-94212
Cross-motion number(s):
Claimant's attorney: H. John Bopp, Esq.
Defendant's attorney: Hon. Letitia James, Attorney General
By: Michael I. Getz, Assistant Attorney General
For Defendant:
New York State Office of Parks, Recreation and Historic Preservation
By: Anthony Palumbo, Esq.
Third-party defendant's attorney:
Signature date: November 20, 2019
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


Movant, William G. Prophy, LLC, seeks late claim relief pursuant to Court of Claims Act (CCA) 10 (6) for breach of contract and unjust enrichment. Defendant opposes the motion.

The proposed claim states that movant entered into a contract with the State of New York Office of Parks, Recreation and Historic Preservation (OPRHP) on or about February 20, 2018 to perform work at the Connetquot River State Park for a total of $371,393.27.(2) The terms of the agreement required that all work be completed by June 25, 2018 and stated that time was of the essence. Movant states that due to a delay in obtaining certain materials, the project was not completed on time. On August 28, 2018 defendant elected to terminate the contract and no further work on the project was done by movant. The proposed claim states four causes of action alleging that movant is owed $403,680.94 for work that was completed prior to the contract termination and for the alleged unjust enrichment of defendant.

"The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756 [2004]). In determining whether late claim relief should be granted, consideration must be given to the six factors enumerated in CCA 10 (6). The presence or absence of any particular factor is not controlling, nor are the six factors necessarily exhaustive (see Broncati v State of New York, 288 AD2d 172 [2d Dept 2001]). The six statutory factors are as follows:

(1) whether the defendant had notice of the essential facts constituting the claim;

(2) whether the defendant had an opportunity to investigate the circumstances underlying the claim;

(3) whether the defendant was substantially prejudiced by the delay;

(4) whether the delay was excusable;

(5) whether the claimant has any other available remedies; and

(6) whether the claim appears to be meritorious.

A proposed claim which satisfies the pleading requirements of CCA 11 (b) must accompany any application for late claim relief.

Preliminarily, this motion for late claim relief was filed within the time allowed by law for the action to be brought in another court (see CCA 10 [6]; CPLR 213) and is therefore timely made.

The CCA 10 (6) factors of notice, opportunity to investigate and potential prejudice to the defendant are interrelated and may be considered together (see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, J., June 17, 2013]). Here, although defendant has relevant records in its possession and potential witnesses in its employ, this cannot be said to have provided notice (see, e.g., Ramirez v County of Nassau, 13 AD3d 456 [2d Dept 2004]). The State would nevertheless have ample opportunity to investigate the matter and despite not having notice of the claim until almost a year after the cause of action accrued, defendant does not argue that it will suffer prejudice from the delay. It is resolved that defendant did not have notice of movant's claims but the other two factors weigh in movant's favor.

Turning to the factor of whether the delay was excusable, movant provides no excuse for the lengthy delay in filing either a claim or this application for late claim relief and this factor is resolved in favor of defendant.

It is unclear whether movant has another remedy available to it - perhaps it might sue the suppliers who allegedly failed to provide materials in a timely fashion or pursue a cause of action for unjust enrichment against the surety which apparently will receive payment for work completed by movant.

As to the final factor of whether the proposed claim has merit, movant must establish that its claim is not "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" (Taormina v State of New York, UID No. 2017-032-005 [Ct Cl, Hard, J., Feb. 7, 2017], quotation and citation omitted; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). "The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach" (Victory State Bank v EMBA Hylan, LLC, 169 AD3d 963 [2d Dept 2019], quotation and citation omitted). "When an agreement is in writing, the best evidence of what the parties intended is what they said in that writing" (Willoughby Rehabilitation and Health Care Center, LLC, v Webster, 20 NYS3d 619 [2d Dept 2015] citing Greenfield v Philles Records, 98 NY2d 562 [2002]). "Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (id. at 569). Here, the existence of a valid contract is not disputed, nor is the fact that movant did partially perform the work contracted for at the State park. For the following reasons, however, movant fails to establish that defendant's refusal to render payment to movant subsequent to the August 28, 2018 termination of the contract constitutes a breach of that contract.

The agreement between the parties herein required a performance bond, which was issued by Colonial Surety Company as surety on or about February 19, 2018. The performance bond provides that if movant defaults under the terms of the agreement, the surety shall promptly remedy the default, either by completing the work itself or obtaining bids to complete the work. The performance bond states that defendant shall:

"make available as work progresses . . . sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, [the total contract amount, or $371,393.27]. The term 'balance of the contract price', as used in this paragraph, shall mean the total amount payable by Owner [defendant] to Contractor [movant] under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor" (Defendant's exhibit 2).

Movant does not allege that the contract was unjustly or improperly terminated. Rather, it argues without legal support that defendant must compensate movant for a portion of work completed prior to the contract termination which was submitted for payment but not approved, and in an amount which exceeds the original contract price. However, "a surety on a performance bond who completes the contract after a default by the principal is subrogated to the principal's right to contract payments which may have been retained by the owner-obligee" (Menorah Nursing Home, Inc. v Zukov, 153 AD2d 13, 17 [2d Dept 1989]). As to movant's claim for unjust enrichment, no such cause of action can be maintained where, as here, a valid contract exists (see Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85 [2d Dept 2009]). Accordingly, the Court finds that movant has failed to establish that any of the causes of action in his claim are meritorious.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act 10(6), the Court finds that the factors weigh against movant's application and the motion for late claim relief is denied.

November 20, 2019

Hauppauge, New York


Judge of the Court of Claims

The following papers were read and considered by the Court on the movant's motion for late claim relief:

1. Notice of Motion, Affidavit in Support with Exhibits.

2. Defendant's Memorandum of Law.

3. Affidavit in Opposition.

2. The contract was fully executed and approved on March 27, 2018 (see defendant's exhibit 1).