Opinion
# 2017-032-020 Claim No. 128493 Motion No. M-89376 Motion No. M-89740
04-26-2017
FIRST TRANSIT, INC. v. THE STATE OF NEW YORK
Hinkley, Allen & Snyder, LLP By: James J. Barriere, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Brett R. Eby, Assistant Attorney General, Of Counsel
Synopsis
Claim alleging breach of contract is dismissed as untimely pursuant to Court of Claims Act § 10 (4).
Case information
| UID: | 2017-032-020 |
| Claimant(s): | FIRST TRANSIT, INC. |
| Claimant short name: | FIRST TRANSIT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128493 |
| Motion number(s): | M-89376, M-89740 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Hinkley, Allen & Snyder, LLP By: James J. Barriere, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Brett R. Eby, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | April 26, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On September 7, 2016, claimant filed a Verified Claim seeking damages from the State arising from an alleged nonpayment by the Department of Corrections and Community Supervision (DOCCS) for the performance of services. In lieu of an answer, defendant moved to dismiss the claim for, among other things, failure to meet the pleading requirements of Court of Claims Act § 11 (b). On November 25, 2016, claimant filed an Amended Verified Claim seeking to correct the alleged deficiencies in its original claim. Defendant now moves to dismiss the amended claim pursuant to CPLR 3211 (a) (1), (2), and (7) on the grounds it was untimely filed and served, fails to state a cause of action, and fails to meet the pleading requirements of Court of Claims Act § 11 (b).
Claimant requested oral argument in this matter by letter to the Court dated February 8, 2017, which this Court denied by letter to the parties dated March 9, 2017. It is well settled that motions in the Court of Claims are on submission of papers, unless oral argument is permitted in the Court's discretion (see 22 NYCRR 206.9 [c]; Safran v State of New York, UID No. 2014-018-504 [Ct Cl, Fitzpatrick, J., Feb. 19, 2014]). After a careful review of the claim, motion papers, affidavits, and exhibits, the Court determined oral argument to be unnecessary and will decide the instant motions upon the papers submitted.
As an initial matter, claimant argues that defendant's motion should be denied because it violates the single motion rule pursuant to CPLR 3211. Said rule provides that, "[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 [CPLR 3211] (a), and no more than one such motion shall be permitted" (CPLR 3211 [e]). "The purpose of CPLR 3211 (e) is to prevent the delay before answer that could result from a series of motions" (Held v Kaufman, 91 NY2d 425, 430 [1998]; see Ramos v City of New York, 51 AD3d 753, 754 [2d Dept 2008]). Notably, however, "[t]he single motion rule is not violated where a second motion to dismiss is directed at another pleading[] or an amended pleading[,] or where the prior motion was not addressed on the merits" (Stevens v State of New York, UID No. 2011-018-231 [Ct Cl, Fitzpatrick, J., Sept. 7, 2011] [citations omitted]; see Rivera v Board of Educ. of the City of N.Y., 82 AD3d 614, 614 [1st Dept 2011]; Sevenson Hotel Assoc. v Stranges, 262 AD2d 957, 958 [4th Dept 1999]; Nassau Roofing & Sheet Metal Co. v Celotex Corp., 74 AD2d 679, 680 [2d Dept 1980]).
Here, the Court did not address the merits of defendant's first motion to dismiss inasmuch as claimant filed and served its amended claim as of right within 40 days after the service of said motion, in accordance with the relevant provisions of the CPLR and the Uniform Rules for the Court of Claims (see 22 NYCRR 206.7 [b]; see also CPLR 3025 [a]). Additionally, many of the arguments raised in defendant's second motion to dismiss "could not have been submitted at an earlier juncture because of the indefiniteness of [claimant's] initial pleading" (Held v Kaufman, 91 NY2d at 430). Moreover, claimant "was afforded an opportunity to respond, thus obviating any danger of prejudice" arising from the subsequent motion (id.; compare Oakley v County of Nassau, 127 AD3d 946, 946-947 [2d Dept 2015]). For all of these reasons, the Court finds that defendant's motion to dismiss the amended claim "violates neither the letter nor the spirit of the single motion rule" (Held v Kaufman, 91 NY2d at 430; see 767 Third Ave. LLC v Greble & Finger, LLP, 8 AD3d 75, 75 [1st Dept 2004]).
Turning then to the merits of defendant's motion, on a motion to dismiss, "the Court of Claims must afford a liberal construction to the claimant's pleadings, accept the allegations as true, and accord the benefit of every possible favorable inference to the claimant" (Garofolo v State of New York, 80 AD3d 858, 860 [3d Dept 2011]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The Court will first address the issue of timeliness, inasmuch as the resolution thereof could result in dismissal of the action for lack of jurisdiction.
With respect to claimant's argument that defendant failed to submit a copy of the amended claim with its motion, the Court exercises its discretion to overlook said procedural defect inasmuch as the record is "sufficiently complete" to adjudicate the motion for the purposes of CPLR 3211 (a) (Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005], lv denied 5 NY3d 708 [2005] [internal quotation marks and citations omitted]; see Washington Realty Owners, LLC v 260 Wash. St., LLC, 105 AD3d 675, 675 [1st Dept 2013]).
As relevant here, "[a] claim for breach of contract, express or implied, . . . shall be filed and served upon the attorney general within six months after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after such accrual" (Court of Claims Act § 10 [4]). "The failure to comply with this provision constitutes a jurisdictional defect warranting dismissal of the claim" (Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]; see Court of Claims Act § 10; Maude v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]). It is well settled that "[a] claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Flushing Natl. Bank v State of New York, 210 AD2d 294, 294 [2d Dept 1994], lv denied 86 NY2d 706 [1995]; see Richard A. Hutchens CC, L.L.C. v State of New York, 59 AD3d 766, 768 [3d Dept 2009], lv denied 12 NY3d 712 [2009]; Bullard v State of New York, 307 AD2d 676, 677-678 [3d Dept 2003]). "Although the determination of the date on which damages are ascertainable may vary based on the facts and circumstances of each particular case, 'it generally has been recognized that damages are ascertainable once the work is substantially completed or a detailed invoice of the work performed is submitted'" (C.S.A. Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189, 192 [2005], quoting New York City School Constr. Auth. v Kallen & Lemelson, 290 AD2d 497, 497 [2d Dept 2002]; see G.A. Contrs. v Board of Educ. of City of N.Y., 176 AD2d 856, 857 [2d Dept 1991]; see generally ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc., 25 NY3d 581, 593-594 [2015]).
As relevant here, the underlying claim alleges that, on or about June 14, 2012, claimant entered into a contract with defendant to provide transportation services for inmates in DOCCS' custody (Amended Verified Claim ¶ 2). However, for reasons not caused by claimant, the contract was not approved by the Attorney General or filed by the Comptroller until February 1, 2013 (Amended Verified Claim ¶ 3). Claimant advised DOCCS that, as a result of the delayed approval and start date, the costs of continuing to provide transportation services under the prior contract, which had been in place since May 2004, would increase (Amended Verified Claim ¶ 7). Claimant further states that, at DOCCS' request, in July 2013, it "began submitting bills for the old mini-coaches used during the phase-in period at the prior contract rates" (Amended Verified Claim ¶ 14). Claimant alleges, however, that DOCCS failed to remit payment for 10 invoices that were sent between July 2013 and January 2014, even though such payments were due within 45 days of the date of each invoice (Amended Verified Claim ¶¶ 18-19). According to claimant, by letter dated June 10, 2015 and received on July 9, 2015, DOCCS expressly rejected its requests for payment (Amended Verified Claim ¶ 23).
Based upon the above time line of events, claimant contends that the instant action was timely commenced by way of a notice of intention to file a claim, which was served upon the Attorney General on December 9, 2015 (Amended Verified Claim, Exhibit A). Defendant contends, however, that the claim accrued on April 29, 2013, at which time claimant first realized its damages and submitted an invoice. In support of that contention, defendant submits a letter from claimant to DOCCS, dated April 29, 2013, in which claimant describes the maintenance costs that it sustained as a result of defendant's delay in implementing the new contract (Affirmation in Support of Motion to Dismiss, Exhibit A). Attached to the letter is an invoice for claimant's non-budgeted repairs to DOCCS' fleet from October 15, 2012 through April 27, 2013, which amounts to $302,766.09 (Affirmation in Support of Motion to Dismiss, Exhibit A).
Even affording a liberal construction to claimant's pleadings, accepting the allegations therein as true, and according it the benefit of every possible favorable inference, the Court finds that claimant's damages were reasonably ascertainable no later than April 29, 2013. Based upon claimant's own allegations, the period for which it seeks reimbursement from DOCCS is from June 14, 2012 through February 1, 2013, during which time it operated the old coaches while awaiting implementation of the new contract (Amended Verified Claim ¶¶ 3-7). Thus, according to the letter and invoice submitted by defendant, all of the services for which claimant seeks additional payment were concluded no later than April 29, 2013, at which time it submitted an invoice to DOCCS (see Schapp v State of New York, UID No. 2012-015-350 [Ct Cl, Collins, J., Aug. 15, 2012]). Notably, claimant does not dispute that contention, but instead argues that the claim did not accrue until July 9, 2015, when it learned that DOCCS was denying its requests for payment. Claimant's argument is contrary to existing law, however, as it is well settled that "New York does not apply the 'discovery' rule to statutes of limitations in contract actions" (ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc., 25 NY3d at 594, quoting Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 403 [1993]; see C.S.A. Contr. Corp. v New York City School Constr. Auth., 5 NY3d at 192-193; Allard v Allard, 145 AD3d 1254, 1256 [3d Dept 2016]; Schapp v State of New York, UID No. 2012-015-350 [Ct Cl, Collins, J., Aug. 15, 2012]). "[R]ather, the 'statutory period of limitations begins to run from the time when liability for [a] wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury'" (Allard v Allard, 145 AD3d at 1256, quoting ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc., 25 NY3d at 594). "This is so even though the result may at times be 'harsh and manifestly unfair, and creates an obvious injustice' because a contrary rule 'would be entirely dependent on the subjective equitable variations of different Judges and courts instead of the objective, reliable, predictable and relatively definitive rules that have long governed this aspect of commercial repose'" (ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc., 25 NY3d at 594, quoting Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d at 403; see Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 767 [2012]).
As set forth above, failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (see Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Langner v State of New York, 65 AD3d at 781; Ivy v State of New York, 27 AD3d 1190, 1190-1191 [4th Dept 2006]). Moreover, the Court cannot waive a defect in jurisdiction that has been timely raised in a pre-answer motion (see Thomas v State of New York, 144 AD2d 882, 882 [3d Dept 1988]). Accordingly, because claimant did not file and serve its claim for breach of contract, nor did it serve a notice of intention to file such a claim, within six months of accrual of the action, it must be dismissed as untimely pursuant to Court of Claims Act § 10 (4) (see Czynski v State of New York, 16 Misc 3d 465, 468 [Ct Cl 2007]). In light thereof, the Court need not reach defendant's alternative arguments for dismissal.
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion to dismiss (M-89740) is granted; and it is further
ORDERED, that defendant's motion to dismiss (M-89376) is denied as moot; and it is further
ORDERED, that the claim (no. 128493) is dismissed.
April 26, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Claim, filed on September 7, 2016. 2. Notice of Motion dated October 17, 2016, and Affirmation in Support of Motion to Dismiss, affirmed by Brett Eby, AAG, on October 17, 2016. 3. Affirmation in Opposition to Motion to Dismiss, affirmed by James J. Barriere, Esq., on November 23, 2016, with exhibits; and Memorandum of Law in Opposition to Motion to Dismiss, signed by James J. Barriere, Esq., on November 23, 2016. 4. Defendant's Reply Memorandum of Law, signed by Brett Eby, AAG, on December 5, 2016. 5. Letter from Claimant dated December 9, 2016. 6. Amended Verified Claim, filed on November 25, 2016. 7. Notice of Motion dated January 4, 2017, and Affirmation in Support of Motion to Dismiss, affirmed by Brett Eby, AAG, on January 4, 2017, with exhibits. 8. Affirmation in Opposition to Motion, affirmed by James J. Barriere, Esq., on February 8, 2017, with exhibits; and Memorandum of Law in Opposition to Motion to Dismiss, signed by James J. Barriere, Esq., on February 8, 2017. 9. Letter from Claimant dated February 8, 2017. 10. Defendant's Reply Memorandum of Law in Support of Motion to Dismiss, signed by Brett Eby, AAG, on February 14, 2017.