Opinion
# 2011-015-257 Claim No. 117464 Motion # 2011-015-257 Claim No. M-79647 # 2011-015-257 Claim No. M-79680
09-30-2011
NOVA CASUALTY v. THE STATE OF NEW YORK
Synopsis
Defendant's motion dismissing surety's claim for the remaining contract balance was granted. Contractor's failure to maintain Workers' Compensation insurance as contractually required was complete defense to surety's claims under payment and completion bonds. Case information
UID: 2011-015-257 Claimant(s): NOVA CASUALTY COMPANY Claimant short name: NOVA CASUALTY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117464 Motion number(s): M-79647, M-79680 Cross-motion number(s): Judge: FRANCIS T. COLLINS Neil B. Connelly, Esquire Claimant's attorney: By: Sharon M. Edwards, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Frederick H. McGown, III, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: September 30, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212 (Motion No. M-79647). Claimant separately moves for summary judgment (Motion No. M-79680) in its favor pursuant to CPLR 3212.
Claimant, a surety, seeks to recover the sum of $85,673.76 from the State which it allegedly paid in satisfaction of its obligations under payment and performance bonds. Roacc Corporation ("Roacc") entered into a contract with the State of New York for the installation of a fire suppression system at MacArthur Airport on June 24, 2006 (defendant's Exhibit G). Claimant posted payment and performance bonds, as surety, in connection with the project on June 6, 2005 in the sum of $523,900.00 (defendant's Exhibit H). Pursuant to the terms of a General Agreement of Indemnity (GAI) dated December 5, 2003, Roacc agreed to indemnify claimant for any claim, liability or loss, including counsel fees, sustained or incurred by reason of having executed or procured the execution of the bonds (claimant's Exhibit B, ¶ 2). The GAI also provided that "in the event of any breach or default on . . . [the part of Roacc] in any of the provisions of said contract . . . that the said [Nova], shall be subrogated to all the rights and properties of the Indemnitor in such contract, including deferred and reserved payments . . . and final payments, and any and all monies and securities that may be due and payable at the time of such default on said contract or any other contract of the Indemnitor or any one or more of them on which . . . [Nova] is or may become surety" (GAI, claimant's Exhibit B, ¶ 8).
Claimant alleges that certain suppliers of materials placed claims under the payment bond in the year 2006, which it paid. Specifically, claimant alleges that a claim by Solco Plumbing Supply, Inc. for $2,446.00 was paid on June 28, 2006 (Claim, claimant's Exhibit A, ¶ ¶ 16, 17); a claim by Ansul Incorporated for $45,500 was paid on February 27, 2007 (Claim, claimant's Exhibit A annexed to affirmation of Sharon M. Edwards dated April 5, 2011, ¶¶ 18, 19); and a claim by Gilmour Supply Co. for $14,421.77 was paid on February 25, 2007 (Claim, claimant's Exhibit A annexed to affirmation of Sharon M. Edwards dated April 5, 2011, ¶¶ 20, 21). With respect to payments made in furtherance of completing the project, claimant alleges the following:
"22. In or about the year 2006, OGS [Office of General Services] and ROACC made demand upon Nova to provide financial assistance to ROACC in ROACC's effort to complete the MacArthur Airport Project.
23. In furtherance of completion of the MacArthur Airport Project, in addition to the aforementioned claims against Nova Bond No. NYCB 58530, Nova incurred additional losses in the amount of $25,135.77, as well as expenses to date in the sum of $25,071.53, which are exclusive of attorney's fees" (Claim, claimant's Exhibit A annexed to affirmation of Sharon M. Edwards dated April 5, 2011, ¶ 22).
Claimant alleges that Roacc executed an All Monies Assignment in its favor on February 6, 2009 and, as a result, OGS honored payment applications numbered 9 and 10 in the amounts of $4,472.60 and $12,598.22, respectively, but failed to honor payment application numbered 11 submitted in September 2009 in the sum of $85,673.76. (Claim, claimant's Exhibit A annexed to affirmation of Sharon M. Edwards dated April 5, 2011, ¶¶ 27, 28). Payment application number 11 reflects it is for the "Payment Work Period Ending" November 27, 2007 (claimant's Exhibit J) but is otherwise unsigned and bereft of detail. The facts alleged in the claim as set forth above are repeated in the affidavit of Warren B. Seifert, Assistant Vice President of Claims for Nova, submitted in support of the claimant's motion for summary judgment.
Three causes of action are asserted in the claim: the first for breach of contract based on defendant's failure to pay the existing contract balance of $85,673.76 owed to claimant as subrogee of Roacc; the second for unjust enrichment; and the third for "an order directing OGS to pay over all monies held in trust by OGS for the benefit of ROACC [on the MacArthur Airport Project], which are now due and owing to Nova based upon Nova's payments under Bond NYCB 58530 and any other bond Nova may have to sustain a loss" (Claim, claimant's Exhibit A annexed to affirmation of Sharon M. Edwards dated April 5, 2011, ¶ 48).
In support of its motion for summary judgment, defendant submits the affidavit of John Lewyckyj, Director of Contract Administration in the Design & Construction Group at the New York State OGS (defendant's Exhibit B). Mr. Lewyckyj indicates that according to information revealed by an Employer's Coverage Search (defendant's Exhibit B-3), Roacc's workers' compensation "lapsed" on January 25, 2008, approximately 9 months prior to the physical completion date of November 7, 2008 (Affidavit of John Lewyckyj sworn to April 1, 2011, ¶ 7). He indicates that Roacc was notified of the need for proof of insurance coverage in multiple letters (defendant's Exhibit B-2).
Defendant contends that Roacc's failure to maintain workers' compensation coverage throughout the duration of the project renders the contract void and unenforceable pursuant to State Finance Law § 142 and the express terms of the contract. On this ground defendant argues that claimant's first cause of action for breach of contract must be dismissed. With respect to claimant's second cause of action alleging unjust enrichment, defendant contends that dismissal is appropriate so as not to contravene the express requirement for Comptroller approval set forth in State Finance Law § 112. Lastly, defendant argues that the crux of the claim, and the third cause of action in particular, is for diversion of trust funds pursuant to Lien Law article 3-A, which this Court lacks subject matter jurisdiction to entertain.
In support of the claimant's motion and, presumably, in opposition to defendant's motion, claimant argues that under settled principles of equitable subrogation it succeeds to the rights of the obligee/owner under the bonds, which includes its right to use the unpaid contract balance to complete the project. It contends that any lapse in workers' compensation insurance was the fault of the defendant, not Roacc, and supports this contention with a letter dated January 27, 2009 from OGS representative, Jayson Schner, in which he indicates that the delay between the extended contract completion date of December 31, 2007 and the physical completion date of November 7, 2008 was caused by "multiple field orders/change orders and coordination with facility operations . . . beyond [Roacc's] control" (claimant's Exhibit G). As a result, liquidated damages were not assessed (id.). This letter also indicates that "[a]fter approval of any pending change orders or field orders, [Roacc] shall submit [its] final payment to the Engineer-In-Charge for certification" (id.). Claimant argues the defendant waived and or is estopped from asserting Roacc's noncompliance with the contractual requirement for workers' compensation insurance and, alternatively, that its cause of action for unjust enrichment is appropriately asserted because the State was enriched by its payment for labor and materials in furtherance of completion of the project.
Claimant's first cause of action for breach of contract arises from its rights as subrogee of both Roacc, its principal, and defendant, obligee under the bond. The right of subrogation enables one who pays a debt that is owed by another the opportunity to be reimbursed in full (Chemical Bank v Meltzer, 93 NY2d 296, 304 [1999]). This equitable doctrine has long been applied to indemnify sureties upon fulfillment of their obligations under payment and performance bonds. The Court of Appeals restated the rule in Matter of RLI Ins. Co., Sur. Div. v New York State Dept. of Labor (97 NY2d 256, 264-265 [2002] as follows:
"Under equitable subrogation principles, where a surety has fully satisfied its obligations under a payment bond and the owner has retained funds to be used in completion of the improvement, 'the [owner] had a right to use the retained fund to pay laborers and materialmen; ... the laborers and materialmen had a right to be paid out of the fund; ... the contractor, had [it] completed [its] job and paid [its] laborers and materialmen, would have become entitled to the fund; and ... the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it' " (quoting, Pearlman v Reliance Ins. Co., 371 US 132, 141 [1962]).
Thus, a surety on a bond "is subrogated to the rights of both the owner and the statutory trust beneficiaries (id. at 261; see also Aetna Cas. & Sur. Co. v United States of Am., 4 NY2d 639, 644-645 [1958]; United States Fid. & Guar. Co. v Triborough Bridge Auth., 297 NY 31, 35-36 [1947]; Scarsdale Natl. Bank & Trust Co. v United States Fid. & Guar. Co., 264 NY 159, 164 [1934]). In this case, the surety is additionally subrogated to the rights of Roacc by virtue of its GAI. The State, may, however, as obligee under the bond, assert against the surety any defenses to payment it has under its contract with Roacc (Matter of RLI Ins. Co., Sur. Div. v New York State Dept. of Labor (97 NY2d at 262-263); Canron Corp. V City of New York (89 NY2d 147, 157 [1996]). Claimant in the instant matter, seeks summary judgment in sum of $85,673.76 for amounts paid in fulfillment of its obligations under its bonds. In doing so, claimant asserts its right as both subrogee of Roacc under the GAI and as subrogee of the owner to use the unpaid contract balance to secure completion of the project or satisfy outstanding claims for labor and materials.
Addressing first defendant's contention that Roacc's failure to maintain workers' compensation throughout the life of the project renders the contract null and void, State Finance Law § 142 provides as follows:
"[e]ach contract to which the state . . . is a party and which is of such a character that the employees engaged thereon are required to be insured by the provisions of the workmen's compensation law shall contain a stipulation that the same shall be void and of no effect unless the person or corporation making or performing the same shall secure compensation for the benefit of, and keep insured during the life of said contract, such employees, in compliance with the provisions of such law".
Roacc's contract with the defendant requires workers' compensation insurance in accordance with the statutory requirement and indicates that "[s]hould the Contractor fail to provide or maintain any insurance required by law the Contract will be considered null and void . . . No payments will be authorized by the Contracting Officer to any firm who fails to comply with the provisions of this Article (contract, defendant's Exhibit B-1, p. 14, § 19.4). Section 4 of the of the appendix states further that "[i]n accordance with Section 142 of the State Finance Law, this contract shall be void and of no force and effect unless the Contractor shall provide and maintain coverage during the life of this contract for the benefit of such employees as are required to be covered by the provisions of the Workers' Compensation Law" (contract, defendant's Exhibit B-1, p. 19, § 4). The effect of this language on Roacc, and claimant as its subrogee, depends on whether the language constitutes an express condition precedent requiring literal compliance and, if so, whether the condition was waived.
An express condition precedent requires literal compliance whereas a constructive condition may be satisfied by substantial compliance (Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690-691 [1995]). The Court of Appeals in Oppenheimer & Co. described a condition precedent as follows:
"A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises . . . Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself . . . . In the latter situation, no contract arises unless and until the condition occurs (Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995] [internal quotation marks and citation omitted]; see also MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009])."
While there is an interpretive preference in favor of finding a constructive condition to avoid the risk of forfeiture, it may not be applied if the occurrence of the condition is "expressed in unmistakable language" (Oppenheimer & Co., 86 NY2d at 691). Language such as "if, unless, and until and/or null and void" has been held to reflect the clear intent of the parties to expressly condition a party's performance of its contractual obligation on the occurrence of the condition (Restaurant Creative Concepts Mgt., LLC v Northeast Rest. Dev., LLC, 83 AD3d 1189, 1191 [2011] [internal quotation marks and citation omitted]; see also Oppenheimer & Co., 86 NY2d at 691). The contractual language in issue here, rendering "null and void" the contract "[s]hould the Contractor fail to . . . maintain any insurance required by law", and stating further that "[n]o payments will be authorized by the Contracting Officer to any firm who fails to comply with the provisions of this Article" (contract, defendant's Exhibit B-1, p. 14, § 19.4), clearly establishes the intent of the parties to withhold payment in the event the condition was not complied with. Given the clear import of this contractual language, non-compliance with the condition precedent may only be excused by waiver, breach or forfeiture (Oppenheimer & Co. , 86 NY2d at 691).
Preliminarily, it should be noted the defendant did not raise the failure of a condition precedent as an affirmative defense in its answer as required by CPLR 3015 (a) and, as a result, arguably waived this defense. However, as the Appellate Division, Third Department, made clear in Sheils v County of Fulton (14 AD3d 919, 921 [2005], lv denied 4 NY3d 711 [2005]):
"Such a waiver . . . may be retracted by assertion of an unpleaded affirmative defense in connection with a summary judgment motion . . . . That is, even an unpleaded defense may be invoked to defeat a summary judgment motion or serve as the basis for an affirmative grant of such relief in the absence of surprise and prejudice, provided that the opposing party has a full opportunity to respond" ([citations omitted]; see also Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; Horst v Brown, 72 AD3d 434 [2010], lv dismissed 15 NY3d 743 [2010]).
Here, claimant makes no argument of waiver based upon defendant's failure to raise the claimant's non-compliance with a condition precedent as an affirmative defense. Nor does claimant assert prejudice or surprise as a basis for waiver. Inasmuch as claimant had a full and fair opportunity to oppose defendant's motion,the failure to comply with a condition precedent may be invoked as a basis for summary judgment.
Claimant addressed defendant's dismissal arguments in its motion for summary judgment which is consolidated with defendant's motion and considered herewith.
Defendant established through the submission of Mr. Lewyckyj's affidavit, together with the Employer's Coverage Search from an official New York State website, that Roacc's workers' compensation coverage was cancelled effective January 25, 2008 (see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010] [court took judicial notice of information contained in a government website]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009] [information contained in government website was sufficiently reliable that it may be given judicial notice]). Claimant does not dispute this assertion but contends the defendant waived this defense, or is otherwise estopped from raising the lack of workers' compensation insurance as a defense, since it complied with its obligations under its bonds and was not notified of the lapse in workers' compensation until after completion of the project.
"Waiver is an intentional relinquishment of a known right and should not be lightly presumed" (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]). "Such a waiver must be clear, unmistakable and without ambiguity" (Matter of Civil Serv. Empls. Assn. v Newman, 88 AD2d 685, 686 [1982], affd 61 NY2d 1001 [1984]; see also Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96 [2006]). While the question of waiver is generally a question of fact, it may be determined as a matter of law in the proper circumstances (Natale v Ernst, 63 AD3d 1406, 1408 [2010], lv denied 13 NY3d 716 [2010]; Welch v Hauck, 18 AD3d 1096 [2005], lv denied 5 NY3d 708 [2005]). Here, claimant's waiver argument is premised on the fact that it was not notified of the lapse in insurance coverage until after the project had been completed. Inasmuch as claimant points to nothing which would have obligated the defendant to notify it of a lapse in coverage, the fact defendant did so only after the project was completed fails to evince an unmistakable intent to waive the insurance coverage requirement. Moreover, an intentional waiver of the contractual requirement for the maintenance of insurance coverage would violate the public policy underlying both State Finance Law § 142 and the compulsory workers' compensation scheme "namely, to surely and swiftly compensate an injured employee or a dependent of a deceased employee" (Matter of Cruz v New Millennium Constr. & Restoration Corp., 17 AD3d 19, 23 [2005]). To the extent claimant contends that defendant waived, not the contractual requirement for insurance, but the right to withhold payment for noncompliance, no evidence other than the defendant's acquiescence in the surety's financial support in completing the project was presented. In the Court's view, this is insufficient to support finding a waiver by the defendant of an express condition precedent. This is especially true in the instant matter, where the issue of waiver must be addressed against the statutory requirement contained in State Finance Law § 142. The statute mandates that public construction contracts include a stipulation requiring the procurement and maintenance of workmen's compensation insurance and provide that the failure to comply with the statutory and contractual requirement renders any such contract "void and of no effect". The defendant had no authority to waive the requirements of the statute whether intentionally, or by implication. As to the issue of payment upon noncompliance, § 19.4 of the contract specifically states "[n]o payment will be authorized by the contracting officer to any firm who fails to comply . . ." with the requirement, inter alia, to secure and maintain workmen's compensation insurance as required by State Finance Law § 142. Under these circumstances, there can be no waiver of the affirmative obligation to ensure the availability of workmen's compensation insurance, imposed pursuant to State Finance Law § 142, assumed by the contractor pursuant to the provisions of the Contract.
Turning to claimant's estoppel argument, application of the doctrine equitable estoppel against the State or a governmental subdivision is limited to situations where the governmental entity "comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice" (Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]; Rivera v State of New York, 5 AD3d 881 [2004]; Fatone v City of Troy, 236 AD2d 676 [1997]). In other words, some "manifest injustice" is necessary to invoke the doctrine against the State or a political subdivision thereof (Allen v Board of Educ. of Union Free School Dist. No. 20, 168 AD2d 403, 404 [1990], lv dismissed 77 NY2d 939 [1991]). No such circumstances are present here. No evidence was presented that defendant induced the claimant's performance of some or all of Roacc's contractual obligations with the promise of unconditional payment. Moreover, it was Roacc, not the defendant, who was in the best position to know whether or not its workers' compensation policy had lapsed. There is simply no evidence to support the contention that defendant comported itself wrongfully or otherwise induced claimant's reliance on a promise or assurance that this defense would not be raised. Roacc's failure to secure workers' compensation coverage in accordance with the express conditions of the contract renders the contract "null and void" and is a complete defense to payment of the contract balance. There being no evidence of either waiver or estoppel, the claimant's first cause of action asserting breach of contract must be dismissed.
Claimant seeks, alternatively, to pursue its second cause of action for unjust enrichment. This cause of action is premised on the contention that insofar as claimant performed its obligations under the bonds, defendant will be unjustly enriched in the event payment is not required. Defendant's acceptance of the benefits of the work constitutes an implied-in-fact contract and is subject to the requirement of Comptroller approval (State Finance Law § 112 [2] [a]; Parsa v State of New York, 64 NY2d 143 [1984]). As the Appellate Division, Third Department, recently explained in M/A-Com, Inc. v State of New York (78 AD3d 1293 [2010]):
"Any contract with a state agency above a monetary threshold must be approved by the Comptroller (see State Finance Law § 112 [2] [a]).. . . Unlike a private party, the State's acceptance of benefits furnished under a contract made without the proper authorization cannot 'estop [the State] from challenging the validity of the contract or from denying liability pursuant to it' (id. at 147; citations omitted). While State Finance Law § 112 does not prevent recovery under a quasi contract theory where a contract is implied-in-law to restore money to its rightful owner (see Parsa v State of New York, 64 NY2d at 148-149; Rosefsky v State of New York, 205 AD2d at 123-124), claimant here is attempting to recover on a contract implied-in-fact through the parties' negotiations and course of conduct. Under such circumstances, 'a contract between them may not be implied to provide 'rough justice' and fasten liability on the State when applicable statutes expressly prohibit it' "(M/A-Com, Inc. at 1294-1295, quoting Parsa v State of New York, 64 NY2d at 147).
The monetary threshold is $50,000 (State Finance Law § 112 [2] [a]).
Here, like the facts in M/A-Com v State of New York (supra), absent compliance with State Finance Law § 112 (2) (a), recovery on a theory of unjust enrichment is barred. " '[W]hile claimant, and others doing business with [defendant], may occasionally suffer what appears to be the unjust consequences of State Finance Law § 112, the overall benefit accruing to the citizens of [defendant] from its application has been determined, by the Legislature, to be worth the risk of such a casualty, ostensibly because contracting parties are better able to protect themselves from State Finance Law § 112 than the people would be to protect themselves without it' " (Hamlin Beach Camping, Catering, & Concessions Corp. v State of New York, 303 AD2d 849, 853 [2003], quoting Rosefsky v State of New York, 205 AD2d 120, 125 [1994]). Claimant's second cause of action for unjust enrichment must therefore be dismissed.
Claimant's third cause of action alleges in substance the following:
"45. Pursuant to the terms of the GAI, it . . .[was] expressly understood and declared that all monies due and to become due under the MacArthur Airport Project, whether in the possession of ROACC or otherwise, for the benefit of and for the payment of all such obligations in connection with the MacArthur Airport Project for which Nova is liable under Bond No. NYCB58530, there is established a trust, which insures [sic] to the benefit of NOVA for any liability or loss it may have to sustain . . .
48. Nova is entitled to an order directing OGS to pay over all monies held in trust by OGS for the benefit of ROACC . . ."
Initially, claimant's reliance on the GAI, which purports to create a trust fund for the benefit of claimant, is misplaced. The State, not being a party to this agreement, is not bound. Thus, the provisions of the GAI, which required that "payments received for or on account of said contract shall be held as a trust fund in which the surety has an interest" has no affect on the interests or obligations of the State (claimant's Exhibit B, ¶ 9). Nevertheless, a trust for the benefit of Lien Law article 3-A beneficiaries arises automatically (see Kemper Ins. Cos. v State of New York, 70 AD3d 192, 196 [2009] ["all funds under the contract were subject to a statutory trust imposed by Lien Law article 3-A, which arose automatically upon the execution of the contract"]). This Court, however, does not have the equitable powers necessary to secure and distribute the assets so as to effectuate the remedial purpose of the statute. Article 3-A of the Lien Law creates "trust funds out of certain construction payments or funds to assure payment of subcontractors, suppliers, architects, engineers, laborers, as well as specified taxes and expenses of construction" (Caristo Constr. Corp. v Diners Fin. Corp., 21 NY2d 507, 512 [1968]). Application of a trust asset for any purpose other than a purpose of the trust as stated in Lien Law § 71 (1) or (2) "before payment or discharge of all trust claims . . . is a diversion of trust assets" (Lien Law § 72 [1]). A trust arising under article 3-A may be enforced by "the holder of any trust claim, including any person subrogated to the right of a beneficiary of the trust holding a trust claim" (Lien Law § 77 [1]). The broad range of remedies available under article 3-A is largely equitable and necessary to effectuate the beneficial purpose of the statute (see Lien Law § 77 [3] [a]).
Such relief includes, inter alia, an accounting; identification and recovery of trust assets "in the hands of any person"; the setting aside of unauthorized payments, assignments or transfers; injunctive relief; recovery of damages for breach of the trust; enforcement of any right of action on behalf of the trust; determination of the existence of trust assets, and an order for distribution and retention for future distribution of trust assets (Lien Law § 77 [3] [a]).
Insofar as the primary jurisdiction of the Court of Claims is limited to actions seeking money damages against the State in appropriation, contract or tort (Court of Claims Act § 9 [2]; Psaty v Duryea, 306 NY 413, 417 [1954]), this Court has previously concluded that jurisdiction over a cause of action pursuant to article 3-A is lacking (see e.g. Nova Casualty Co. v State of New York, UID No. 2010-015-139, Claim No. 117765, Ct Cl, April 13, 2010], Collins, J.; Higgens -Kieffer, Inc. v State of New York, 165 Misc. 2d 425 [1995]). While the Court "may apply equitable considerations and perhaps, to some extent, may grant some sort of incidental equitable relief ... the Court of Claims has 'no jurisdiction to grant strictly equitable relief . . .with the return of money to follow as a consequence of the equitable relief, if granted' " (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997] [citations omitted]]). Since the relief afforded article 3-A beneficiaries under the Lien Law is largely equitable with the return of money to follow if successful, this Court lacks jurisdiction to entertain a claim under article 3-A of the Lien Law. Claimant's request in its third cause of action for an Order directing OGS to pay over the proceeds of the monies held in trust for the benefit of Roacc is specifically the type of equitable relief which this Court has no jurisdiction to grant. Consequently, to the extent the third cause of action in the claim may be construed as alleging a claim under Lien Law article 3-A, this Court lacks jurisdiction.
Based on the foregoing, defendant's motion is granted and the claim is dismissed. Claimant's motion is denied in its entirety.
September 30, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion No. M-79680
1. Amended notice of motion dated April 6, 2011;
2. Affirmation of Sharon M. Edwards dated April 5, 2011 with exhibits;
3. Memorandum of Law of Sharon M. Edwards filed April 6, 2011.
Motion No. M-79647
1. Notice of motion dated April 1, 2011;
2. Affirmation of Frederick H. McGown, III dated April 1, 2011 with exhibits.