Opinion
# 2013-018-441 Claim No. 118206 Motion No. M-83516 Cross-Motion No. CM-83777
11-01-2013
STEPHEN CONAWAY and ERIKA CONAWAY v. STATE OF NEW YORK
Claimant's attorney: GOLDBERG SEGALLA LLP By: Jeffrey L. Kingsley, Esquire Patrick B. Omilian, Esquire Defendant's attorney: ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Timothy P. Mulvey, Esquire Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim as untimely pursuant to CPLR 214-c is granted.
Case information
UID: 2013-018-441 Claimant(s): STEPHEN CONAWAY and ERIKA CONAWAY Claimant short name: CONAWAY Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118206 Motion number(s): M-83516 Cross-motion number(s): CM-83777 Judge: DIANE L. FITZPATRICK GOLDBERG SEGALLA LLP Claimant's attorney: By: Jeffrey L. Kingsley, Esquire Patrick B. Omilian, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Timothy P. Mulvey, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: November 1, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings a motion pursuant to CPLR 214-c and 3211 for an order dismissing the claim. Claimants oppose the motion and cross-move for summary judgment on the issue of Defendant's liability. Defendant opposes Claimants' cross-motion.
DEFENDANT'S MOTION TO DISMISS
The Court will first address certain procedural arguments raised by Claimants. Claimants argue that Defendant is precluded from bringing a second motion under CPLR 3211 to seek dismissal of the claim as untimely. Claimants also allege that Defendant failed to plead the statute of limitations as a defense in its answer and, therefore, the defense has been waived, or the Court previously ruled on the timeliness issue in its Decision and Order dated March 29, 2013, on Defendant's prior motion and, therefore, that determination is the law of the case.
(a) Second Motion Rule
CPLR 3211 (a) authorizes a motion to dismiss a cause of action and CPLR 3211 (e) provides in part:
"[a]t any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five [statute of limitations] and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading."Defendant did not bring a pre-answer motion to dismiss. Defendant brought a prior motion to dismiss the claim after service of its answer, asserting, as relevant here, the failure to timely file and serve a claim within 90 days of the date of accrual in accordance with the Court of Claims Act. This Court rendered a Decision and Order dated March 29, 2013, finding Defendant had waived its defense of untimeliness under the Court of Claims Act by failing to raise it with particularity in its Answer (Court of Claims Act § 11 [c]). The Court did not reach the issue of the statute of limitations by its Decision and Order basing its determination solely upon the question of timeliness under the Court of Claims Act.
.Although the Court permitted the parties to provide additional submissions for treatment of that motion as one for summary judgment (CPLR 3211 [c]), the Court did not ultimately consider any additional submissions and decided the motion solely upon the parties' original submissions and arguments.
Although Defendant may not bring another motion to dismiss under CPLR 3211 where the statute of limitations objection has been preserved by being raised in its answer, the Court can treat the second motion as one for summary judgment and address the merits of the motion (see Schultz v Estate of Sloan, 20 AD3d 520 [2d Dept 2005]; Ancrum v St. Barnabas Hosp., 301 AD2d 474 [1st Dept 2003]; Siegel, NY Prac., § 273 [5th ed 2001]). The parties were advised that the Court would treat this motion as one seeking summary judgment pursuant to CPLR 3212 at a Court conference held on December 6, 2012. Addressing the issue at this point is appropriate rather than leaving the issue to the date of trial.
(b) Waiver of Statute of Limitations Defense
Claimants also assert that Defendant has waived its statute of limitations defense by failing to raise it properly in its answer. The Court does not agree. Although this Court found Defendant had waived its timeliness defense under the Court of Claims Act, the Court of Claims Act demands the defense be raised with particularity (see Court of Claims Act § 11 [c]). There is no comparable requirement for raising a statute of limitations defense under the CPLR. In fact, all that is required is reference to the "statute of limitations"; there is no requirement to set forth the specific statutory section supporting the defense (Immediate v St. John's Queens Hosp., 48 NY2d 671, 673 [1979]). Moreover, although the references in the defense to different times rendered the defense inadequate for purposes of Court of Claims Act § 11 (c), even reference to the wrong statutory provision does not waive a statute of limitations defense under the CPLR (see Youssef v Triborough Bridge & Tunnel Auth. 24 AD3d 661 [2d Dept 2005]).
Here, Defendant's Fourth Affirmative Defense provides that "[t]he Claim is untimely and barred by operation of the statute of limitations set forth in CPLR Article Two . . . ." The Court finds this is sufficient to preserve Defendant's statute of limitations defense for purposes of the CPLR.
Turning now to the more substantive issues raised by Defendant's motion in addition to the time frames set forth in the Court of Claims Act, claimants in the Court of Claims must also comply with the time limitations set forth in the CPLR (see Trayer v State of New York, 90 AD2d 263 [3d Dept 1982]). Article 3, section 19 of the New York State Constitution prohibits the payment of claims against the State which would be barred by a lapse of time if between citizens of the State (NY Const, art III, § 19; see also Morra v State of New York, UID No. 2011-015-276 [Ct Cl, Collins, J., Nov. 29, 2011]). The question is whether the statute of limitations under the CPLR bars this claim and whether Defendant has met its burden to establish the claim as untimely as a matter of law. In support of its motion, Defendant relies upon the verified claim which asserts that the claim accrued on or about April 7, 2004, when the Defendant, by the Department of Transportation (hereinafter DOT), tested Claimants' property and wells and found chloride contamination. Defendant asserts that the claim filed and served on March 31, 2010, is barred by CPLR 214-c, because it was not brought within three years of discovering the alleged contamination of their property.
The claims seeks damages and a permanent injunction for negligence, nuisance, trespass, and for strict liability for the alleged chloride migration from the DOT sub-storage facility onto Claimants' property in Alexandria Bay, New York. Claimants seek damages to their real and personal property, economic and business loss, loss of quality of life, and the creation of conditions that are harmful to human health and the environment. Claimants also allege a substantial and unreasonable interference with the enjoyment of their property and assert that the State's wrongdoing continues to accrue daily.
CPLR 214-c (2) provides that:
"[n]ot withstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury . . . or from the date when through the exercise of reasonable diligence such injury should have been discovered . . . , whichever is earlier."
Injury caused by the latent effects of exposure to "any substance" has been found to include contamination from salt under CPLR 214-c (2) (D'Agostino v Town of Pound Ridge, 41 AD3d 760 [2d Dept 2007]; Thoma v Town of Schodack, 6 AD3d 957 [3d Dept 2004]; Gowin v Town of Pulteneny, 294 AD2d 852 [4th Dept 2002]). In the claim, Claimants assert April 7, 2004, was the date of accrual when DOT conducted a site visit and well testing revealing the Claimants' water wells were contaminated with chloride. Although the date Claimants discovered the contamination is not set forth, on March 17, 2005 Claimants filed an administrative claim with DOT outlining the contamination of their property from the sodium chloride migration, establishing that at least by that date Claimants had discovered the salt contamination. Defendant has met its burden and established that the claim filed and served on March 31, 2010, was not brought within three years of Claimants' discovery of the contamination in accordance with CPLR 214-c (2).
Claimants, however, make several arguments in support of their position that their claim is not barred by CPLR 214-c (2). Specifically, Claimants argue that: a) their action is for indemnification for remediation costs, which is governed by a six-year statute of limitations; b) CPLR 214-c (2) is not applicable to a claim for injunctive relief which Claimants seek; c) the claim seeks damages for multiple injuries with multiple accrual dates caused by the State's ongoing contamination of Claimants' land; and d) the State should be equitably estopped from relying upon the statute of limitations defense based upon its affirmative conduct and representations.
1) The claim is actually one for indemnification subject to a six-year statute of limitations.
Indemnification is "[t]he right of one party to shift the entire loss to another" (Bellevue S. Assoc. v HRH Constr. Corp., 78 NY2d 282, 296 [1991]). It may arise by contract or be implied through the common law.
Common-law indemnity is "vicarious liability without actual fault on the part of the proposed indemnitee" (Great Am. Ins. Co. v Canandaigua Natl. Bank & Trust Co., 23 AD3d 1025, 1028 [4th Dept 2005]). Implied indemnification arose to shift liability from the party who was liable in damages but had engaged in no active wrongdoing to the party who was the principal wrongdoer (D'Ambrosio v City of New York, 55 NY2d 454, 461 [1982]).
Claimants rely upon three cases to support their position that they have a claim for indemnification against the State.
In State of New York v Stewart's Ice Cream Co. (64 NY2d 83 [1984]), the State expended monies from the New York Environmental Protection Spill Compensation Fund to cleanup an oil leak from storage tanks owned by an oil company. The leak contaminated the water well of a local restaurant. The Court of Appeals found that the action was not barred by CPLR 214-c (2), but instead was governed by a six-year statute limitations because the action was one for indemnification. The legislation creating the State Cleanup Fund, imposed strict liability upon any party discharging oil "for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained" (Navigation Law § 181 [1]). The law imposes upon the State the duty to act promptly to cleanup the spill or engage a contractor or agent to do the cleanup. The Court of Appeals noted that the Navigation Law regulates the obligations "of the State and any party who has caused [the] discharge" (State of New York, 64 NY2d at 88). The court found that the State had incurred expenses to fulfill a duty primarily owed by the party who had discharged the oil, which squarely met the definition of an indemnity action.
In Grossjahann v Wilkins & Sons (244 AD2d 808 [3d Dept 1997]), the plaintiff purchased property that had been used as a petroleum distribution center and gasoline station. Several years later, it was discovered that the groundwater on the property was contaminated by gasoline and petroleum products. The Department of Environmental Conservation required the plaintiff to remediate the contamination, thereby incurring substantial expense. Plaintiff thereafter commenced this action against the former owner of the property. There were issues of fact as to whether the cause of action subject to CPLR 214-c (2) was timely commenced, but the court found that to the extent the amended complaint sought reimbursement for sums expended in connection with the State-mandated remediation effort, it was an action seeking indemnification subject to a six-year statute of limitations.
In Oliver Chevrolet v Mobil Oil Corp. (249 AD2d 793 [3d Dept 1998]), plaintiff brought a claim for property damage and remediation costs from leaking underground gasoline storage tanks. The gasoline tanks were supplied by defendant and had been replaced twice after leaks were detected. Many years later, plaintiff's well water was found to be contaminated, requiring remediation. When plaintiff could no longer cover the cleanup costs, the State took over the process and indicated its intent to seek reimbursement from plaintiff. The court found that plaintiff's allegations that the contamination decreased the value or profitability of its property were untimely under CPLR 214-c. The court found that to the extent the plaintiff sought reimbursement of the amounts spent for remediation, the action was one for indemnification and timely, subject to the six-year statute of limitations.
Claimants argue that in their claim they specifically seek cleanup costs and out-of-pocket expenses associated with the salt contamination, and therefore, that portion of their claim is for indemnification like the plaintiff in Oliver Chevrolet, Inc. As enticing as this argument is as a means to allow this claim to go forward, and despite the favorable language in the Oliver Chevrolet, Inc., case, i.e, that the plaintiff's claims for reimbursement of remediation costs, "whether premised upon allegations that defendant was the negligent party or based solely on charges that it, rather than plaintiff, was the actual discharger, remain viable" (Oliver Chevrolet, Inc., 249 AD2d at 795), this claim is not one for indemnification.
The cases cited above involve petroleum contamination, a substance the legislature has found requires prompt and significant actions to remediate and, more importantly, for our purposes here, has imposed strict liability for all damages from its discharge. The fund established by the legislature for petroleum cleanup is also strictly liable without regard to fault for all cleanup costs and direct and indirect damages (Navigation Law § 181 [2]). To the extent the State has expended monies for the cleanup, it can have a lien against the owner of the property (see Navigation Law § 181-a - § 181-d). The Fund Administrator also has a right of subrogation to recover the costs and damages from the discharger (Navigation Law § 188).
The legislature has not created the same treatment for salt contamination, and it is this difference that prevents the consideration of Claimants' claim as one for indemnification. Claimants, here, have no vicarious liability for the remediation of their property, the gravamen of their claim is compensation for the injury to their property as a result of the migration of the salt and contamination of some of their water wells. Claimants bear no legal liability for the damage to their property, they seek to be compensated for the damage caused. Under these circumstances, a claim for indemnification has not been set forth.
2) CPLR 214-c (2) does not bar a cause of action for equitable relief.
Claimants correctly argue that CPLR 214-c (2) applies only to actions for damages. In Jensen v General Elec. Co. (82 NY2d 77 [1993]), the Court of Appeals found that the plain language of CPLR 214-c (2) does not affect a party's right to seek injunctive relief under the common law accrual method - including the common law continuing wrong exception, whereby the invasion of a substance was seen as a series of independent invasions each giving rise to a new cause of action (id. at 89-91). Here, in addition to money damages, Claimants also seek injunctive relief in their claim.
The difficulty with Claimants' position, however, is that their action is against the State of New York in the Court of Claims. The Court of Claims, unlike the Supreme Court, does not have general equity jurisdiction. The Court of Claims has authority to hear only claims against the State for money damages, it can only grant incidental equitable relief (Court of Claims Act § 9; see Madura v State of New York, 12 AD3d 759 [3d Dept 2004]). If Claimants' claim for money damages is untimely, their action for equitable relief cannot stand alone in the Court of Claims and, therefore, cannot be the basis to extend the time frame for filing a claim (see Psaty v Duryea, 306 NY 413 [1954]).
3) The State's contamination of Claimants' property continues to occur anew each day causing multiple accrual dates and multiple injuries.
Claimants seek to distinguish their claim from the Court of Appeals' decision in Jensen v General Elec. Co. (82 NY2d 77), arguing that in this case Defendant continues to cause new damage to their property daily because the salt migration has not been completely abated unlike in Jensen where General Electric discontinued the hazardous waste disposal before plaintiff had even purchased the property. However, the Court of Appeals in Jensen specifically addressed the continuing wrong rule, which had developed through common law to ameliorate the harsh effects of applying the statute of limitations from the date of exposure before the enactment of CPLR 214-c (2). The Court of Appeals found that the enactment of CPLR 214-c (2) balanced the rights of both parties in cases of damages from alleged exposure to a substance. It extended the time for plaintiffs to sue until they have reason to discover their injury and permits recovery of all damages, not just those within three years of commencement. This was balanced against limiting defendant's liability to a period of time rather than in perpetuity from a continuing wrong. The court said, "[w]e conclude, therefore, that the reasonable interpretation of the present statute, from the Legislature's words and actions, is that it intended no continuing-wrong exception to its new comprehensive across-the-board rules" (Jensen, 82 NY2d at 88).
Whether the offending party continues to contaminate is not the decisive inquiry for application of the statute; rather, it is the date of discovery (see D'Agostino v Town of Pound Ridge, 41 AD3d 760 [2d Dept 2007] [where plaintiff sought to enjoin town from continued practice of using de-icing materials and plowing salt-laden snow into plaintiff's property at time action was commenced; court held damages action untimely]). The case Claimants rely upon Giardina v Parkview Ct. Homeowners' Assn. (255 AD2d 878 [4th Dept 1988]) reflects facts which support more than one accrual date arising from separate or distinct tortious acts. In Giardina, the plaintiff sued for injuries suffered by exposure to her neighbor's excessive application of pesticides to his lawn. The action was timely only for the date of the last exposure alleged in the action occurring within three years of commencement. Here, Claimants do not allege distinct tortious acts, but rather the continuous failure of the State to properly store their salt supplies resulting in an ongoing contamination of the property. The conduct is continuous rather than involving distinct and separate torts.
The facts cannot be surmised from the 1988 Appellate Division case, but can only be gleaned from a subsequent malpractice case (see Giardina v Lippes, 34 AD3d 1220 [4th Dept 2006]; Giardina v Lippes, 2009 WL 8607589 [Sup Ct, Erie County 2009]).
Claimants also seek to extend the running of the statute of limitations through application of the two-injury rule. This allows a plaintiff to sue for a second independent injury caused by exposure to a substance for which a cause of action has already accrued for another injury (see Fusaro v Porter-Hayden Co., 145 Misc 2d 911 [Sup Ct, NY County 1989] affd 170 AD2d 239 [1st Dept 1991]). In Fusaro, the court found the statute of limitations began to run anew from discovery of a new illness, although causally related to the exposure to the same substance that caused a prior illness for which the plaintiff's cause of action was untimely. Thus, in Bimbo v Chromalloy Am. Corp. (226 AD2d 812 [3d Dept 1996]), where defendant could not definitively show that the contamination of the plaintiff's soil and shallow groundwater was an outgrowth, maturation, or complication of the contamination of plaintiff's water well or the result of a separate exposure from flooding of a contaminated river, the court denied summary judgment (Bimbo at 815, quoting Fusaro at 916). Conflicting evidence was presented as to when plaintiff learned of the contamination of their soil and shallow groundwater. When the plaintiff became aware of the conditions for purposes of the statute of limitations was a mixed question of law and fact and could not be conclusively established precluding summary judgment in that case.
Here, Claimants have not alleged separate injuries or separate tortious acts. Rather, the claim and Claimants' submissions indicate the contamination of Claimants' property evidenced by high salt concentrations in three of their water wells which has now spread to additional wells, is the continuation of the original contamination. Efforts to dig deeper wells at various locations around Claimants' property between 2005 and 2011 have revealed the contamination is pervasive and affects different aquifer levels but does not raise issues of whether this expansive contamination involved separate injuries or independent tortious acts.
(c) The State Should be Equitably Estopped From AssertingA Statute of Limitations Defense
Claimants argue that Defendant should be prevented from asserting the statute of limitations defense based upon the doctrine of equitable estoppel. Equitable estoppel may prevent a defendant from asserting that a claim is time barred when defendant's own wrongful conduct caused the long delay between the accrual of the cause of action and the commencement of legal action (General Stencils v Chiappa, 18 NY2d 125, 128 [1966]). The doctrine is rarely applied against the government when acting in its governmental capacity (see Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88, 93 n 1 [1981]), except in exceptional cases where the governmental subdivision acts wrongfully by purposeful acts or omissions where there is a duty to act, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]; Rogozinski v Petronio. 284 AD2d 992 [4th Dept 2001]; H. Sysol Constr. Co. v State of New York, 92 Misc 2d 238 [NY Ct Cl 1977]). Application of the doctrine of equitable estoppel to preclude the assertion of the defense of the statute of limitations requires some showing of inducement by fraud, misrepresentation, or deception to refrain from timely commencing an action (Simcuski v Saeli, 44 NY2d 442 [1978]). There must be evidence that defendant's conduct caused the delay between the accrual of the claim and the commencement of legal proceedings, involving more than the original tortious conduct giving rise to the claim (Corsello v Verizon N.Y., Inc., 18 NY3d 777, 789 [2012]; Zumpano v Quinn, 6 NY3d 666, 673 [2006]; Bender, 38 NY2d at 668; Elmer v Village of Honeoye Falls, 100 AD2d 734 [4th Dept 1984]). Typically, the question of whether the defendant should be equitably estopped is a question of fact (Putter v North Shore Univ. Hosp., 7 NY3d 548 [2006]).
Here, the State made full disclosure of the tortious conduct (improper storage of salt), giving rise to the claim in a letter from DOT in May 2004, which is the latest possible date of accrual for any cause of action for damages based upon the latent effects of the salt contamination. It is Defendant's conduct, from the date of that letter until May 2007, that is relevant for consideration as to whether the State actions caused the delay in Claimants commencing this claim.
Claimants indicate that following the May 2004 letter, they monitored their water quality until March 2005 and then wrote to DOT describing the ongoing nature of the salt contamination and requested a DOT small claim form. The small claim form was completed, and three estimates to drill and encase new wells were submitted in March 2005. In June 2005, DOT began providing Claimants bottled water for their residences and business, which has continued to date. On June 21, 2005, Claimants sent DOT, at its request, a signed release giving the State permission to enter their property to drill additional wells and conduct further water quality testing. On December 5, 2005, Claimants had a new well drilled for their business which they hoped would be outside of the contamination plume. Testing revealed after the well was drilled that the new well was also contaminated. On December 8, 2005, another well was drilled further west on Claimants' property, but this well also had high chloride contamination. A subsequent test of that new well revealed that the contamination levels were increasing.
On December 21, 2006, a meeting was held at Claimants' business with several DOT employees, DOT counsel, an engineer, a representative from Water Systems Unlimited, Claimants and Claimants' counsel. At the conclusion of the meeting, it was determined that additional testing and monitoring would occur and, thereafter, more wells would be drilled to attempt to draw fresh water from below the contamination. A final course of action would be to create a "water farm" at the furthest point on Claimants' property. On January 24, 2007, Claimants' prior counsel sent all of the paperwork DOT requested. On November 19, 2007, DOT conducted further testing of Claimants' water wells. On March 27, 2008, there was a discussion of Claimants giving the State an easement. On June 23, 2009, DOT notified Claimants that it would drill small bore diameter test wells and provide Claimants with a water tanker for their agricultural needs. On August 8, 2009, Claimants provided business documents to DOT at its request. In March 2010, Claimants retained new counsel and the claim was served on March 31, 2010.
Following commencement of this action, DOT drilled new wells on June 22, 2011, September 23, 2011 and November 8, 2011, which were all contaminated. The options discussed during the 2006 meeting among the parties were no longer feasible, and Claimants were advised that the contamination of their property was pervasive and a potable water source could not be obtained on the property.
The Court has scoured Claimants' submissions searching for some allegation or indication that Defendant engaged in conduct that was fraudulent, deceptive, or in some way misrepresented the facts leading Claimants in reliance to forego timely commencement of an action here. No such conduct is apparent or alleged. Instead, the documents indicate that the State acknowledged its potential responsibility for the high salt levels in May 2004 and, thereafter, tested Claimants' wells and made efforts to find a potable water source. From that time frame through 2007, there are no facts alleged that support any fraudulent or deceptive conduct.
Claimants also do not assert any oral misrepresentation or deception. Although DOT has tried to work with Claimants to find a resolution to the water contamination, Claimants do not allege that these efforts by DOT led them to believe it would be unnecessary to commence litigation in order to resolve all of their claims (Gowin, 294 AD2d 852 at 852-853). The State clearly represented that it intended to provide Claimants with clean potable water, which it has not done. But rather than a misrepresentation designed to lull Claimants into not commencing an action, it appears more of a hopeful intention. This is evident by DOT's efforts, even after the expiration of the statute of limitations, and before and after Claimants filed and served this claim to find options to provide clean potable water. Claimants were represented by prior counsel before the expiration of the statute of limitations.
The Court is troubled by the claim form that Claimants submitted to DOT in 2005. The Court has not been provided with any information relating to what DOT advised regarding the administrative claim, what Claimants' understanding of this claim form was, and what instructions, if any, were provided with the claim form. There is no indication on the claim form that relief is limited, or that filing this claim will not protect one's rights to bring a legal action against the State. Without any indication that the claim form was presented as an option to commencing a legal action, however, there is no indication the State misrepresented the effect of Claimants filing this claim. Although the Court would prefer that the administrative "Claim Form" provide more information as to its limitations for relief for a lay person, and a statement to the effect that the filing of that claim form with DOT does not preserve legal remedies under the Court of Claims Act, there is no support in the record that this option was presented as an incentive or to dissuade Claimants from commencing an action.
(See Exhibit A attached to the claim).
Although the issue of whether estoppel should be applied, typically involving both questions of fact and law, here, where there have been no allegations of fraud, misrepresentation, or deception, the Court can decide as a matter of law. Here, the grounds for estoppel have not been shown (see Exhibit A attached to the claim).
Accordingly, based upon the foregoing the State's motion must be GRANTED and the claim DISMISSED. Claimant's cross-motion is hereby DENIED as moot.
November 1, 2013
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these motions:
M-83516
1) Notice of Motion.
2) Affirmation of Timothy P. Mulvey, in support, with exhibits attached thereto.
3) Defendant's Memorandum of Law.
4) Affidavit of Carl Kochersberger, sworn to August 16, 2013, in support.
5) Affirmation of Timothy P. Mulvey, regarding sanctions, filed August 21, 2013.
6) Defendant's Reply Memorandum of Law.
CM-83777
7) Notice of Cross-Motion.
8) Affirmation of Jeffrey L. Kingsley, Esquire, in opposition to Motion No. M-83516 and in support of this cross-motion, with exhibits attached thereto.
9) Reply Affirmation of Patrick B. Omilian, Esquire, in support.
10) Claimants' Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and in support of Claimants' Cross-Motion for Summary Judgment.
11) Claimants' Reply Memorandum of Law.