Opinion
# 2016-015-126 Claim No. 122824 Motion No. M-87589
04-08-2016
NEW YORK STATE ELECTRIC & GAS CORPORATION v. THE STATE OF NEW YORK
Bond, Schoeneck & King, PLLC By: Jeffrey Clark, Esquire and Mary P. Moore, Esquire Honorable Eric T. Schneiderman, Attorney General By: Aaron J. Marcus, Esquire Assistant Attorney General
Synopsis
Claimant's motion to amend its claim was granted and its motion for partial summary judgment was denied. Issues of fact precluding summary judgment existed regarding whether or not defendant's directive to relocate utility pole was arbitrary or wanton.
Case information
| UID: | 2016-015-126 |
| Claimant(s): | NEW YORK STATE ELECTRIC & GAS CORPORATION |
| Claimant short name: | NYSEG |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122824 |
| Motion number(s): | M-87589 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Bond, Schoeneck & King, PLLC By: Jeffrey Clark, Esquire and Mary P. Moore, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Aaron J. Marcus, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 8, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, New York State Electric & Gas Corporation (NYSEG), moves to amend its claim to add causes of action for negligent misrepresentation and promissory estoppel and for partial summary judgment on its causes of action for negligence, negligent misrepresentation and promissory estoppel, asserted as its first, second and fifth causes of action in its proposed amended claim.
NYSEG seeks damages for the cost of relocating one of its utility pole structures, designated New Structure 21A, during the course of a construction project to replace the Route 201 Bridge over Old Vestal Road in the Town of Vestal, New York. NYSEG owns Line 441, a portion of which is located within the highway boundaries of Old Vestal Road. As a result, NYSEG was requested to relocate a number of its electric poles in Line 441 at its own cost and expense. NYSEG alleges that during the planning stages of the project, the New York State Department of Transportation (NYSDOT) "shared with Claimant and other utilities the final plans and specifications for the Project to enable them to plan relocation of poles, wires, and other facilities affected by the redesign of the Route 201 Bridge" (Exhibit J attached to Moore's affirmation, claim, ¶ 12). NYSEG alleges that it developed a plan for the relocation of Line 441 based upon the specifications provided. According to the allegations in both the claim and proposed amended claim, the relocation plan was presented to Marvin Fetterman, NYSDOT's Region 9 Utility Engineer, on February 2, 2011, discussed at a meeting attended by various NYSDOT personnel and its construction contractor, Bothar Construction (Bothar), on February 9, 2011, and approved, with certain modifications not pertinent here, on March 4, 2011 (Exhibit J to Moore Affirmation, ¶¶ 13, 17, 23). NYSEG alleges the following with respect to the February 9, 2011 meeting:
"18. During this meeting, Claimant discussed the Proposed Plan with Fetterman and Bothar, among others, and informed them that it was critical that the soil bank where New Structure 21A was to be located not be excavated or otherwise altered, so as to allow for proper stabilization of the structure.
19. Claimant, furthermore, asked whether NYSDOT or Bothar anticipated that there would be any modifications to the existing topography or surface grade of the soil bank where New Structure 21A was to be located.
20. NYSDOT and Bothar assured Claimant that there would not be any modifications to the topography or surface grade of the soil bank where New Structure 21A was to be located.
. . .
24. NYSEG constructed New Structure 21A in reliance on Fetterman's and Bothar's representations that there would not be any modifications to the soil bank where New Structure 21A was to be located" (Exhibit J, proposed Amended Claim, ¶¶ 18-20, 24).
Michael Rossiter, Lead Analyst in Transmission Design for NYSEG, states in an affidavit submitted in support of NYSEG's motion that "[o]n February 22, 2011, I met with Scott Ellsworth, Bothar's site supervisor, and specifically asked whether the grade would be change[d] at the location of New Structure 21A by more than one foot, and he said no" (Rossiter affidavit ¶ 30).
Subsequent to relocating New Structure 21A, NYSEG alleges that on June 6, 2011 its personnel observed that the embankment area where New Structure 21A was placed had been excavated and significant quantities of soil from the soil bank around New Structure 21A had been removed thereby substantially reducing the structural support provided by the soil bank (Exhibit J to Moore affirmation, proposed Amended Clam, ¶ 26). Furthermore, NYSEG alleges that the project plans which were provided did not depict or otherwise suggest that the area where the pole and wires were placed would later be excavated nor was it ever notified of the intended excavation. Although Mr. Rossiter requested that the soil bank be restored to secure the New Structure 21A, he was advised by Mr. Fetterman on July 22, 2011 that this was not possible due to the negative impact on visibility for the vehicles entering Old Vestal Road from the Route 201 exit ramp. Nor was NYSEG's alternative proposal for the installation of a retaining wall accepted for the same reason (Exhibit J to Moore affirmation, proposed Amended Clam, ¶ 32). Instead, NYSEG was requested to re-set New Structure 21A and its supporting guy wires at a deeper depth to accommodate the removal of soil from the embankment.
The claim asserts causes of action for negligence, breach of contract, and breach of an implied agreement. The proposed amended claim adds causes of action for negligent misrepresentation and promissory estoppel. Both the claim and the proposed amended claim seek damages in the amount of $45,999.43.
It is well settled that absent prejudice or surprise, leave to amend a pleading shall be freely granted where the proposed amendment is not plainly lacking in merit (CPLR 3025 [b]; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755,757 [1983]; Davis v Wyeth Pharms., Inc., 86 AD3d 907, 908 [3d Dept 2011]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1149 [3d Dept 2009]). Leave to amend is properly denied, however, " if the moving party fails to make some evidentiary showing that the proposed amendment has merit" (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1327 [3d Dept 2010]; Cowsert v Macy's E., Inc., 74 AD3d 1444, 1445 [3d Dept 2010]; Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d 1284, 1289 [3d Dept 2009]). Where prejudice is claimed as a basis for opposing the motion, the opponent of the motion must show that it would be "significantly prejudiced" by the amendment (Garrison v Clark Mun. Equip., 239 AD2d 742, 742 [3d Dept 1997]). " 'Prejudice in this context means that the party opposing the amendment has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position' " (Garrison v Clark Mun. Equip., 239 AD2d at 742-743, quoting Pritzakis v. Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see also Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]).
Section 206.7 (b) of the Uniform Rules for the Court of Claims (22 NYCRR 206.7 [b]) permits a pleading to be amended in the manner provided by CPLR 3025, "except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it."
Defendant opposes NYSEG's motion to amend its claim on the ground that new facts were alleged in paragraphs 17 through 20 and 24 of the proposed amended claim that were not previously alleged and that the oral statements attributed to Mr. Fetterman were not previously disclosed during the course of discovery. The Court has compared the allegations in the claim and proposed amended claim and finds that while certain factual allegations were expounded upon, no new facts were alleged which should have resulted in surprise or prejudice to the defendant. Rather, the thrust of the proposed amended claim is to add causes of action for negligent misrepresentation and promissory estoppel. To the extent defendant contends that the oral statements attributed to Mr. Fetterman in the proposed amended claim were not disclosed during the course of discovery, defendant failed to demonstrate that it was hindered in the preparation of its case or has been otherwise prevented from taking some measure in support of its position. Inasmuch as the proposed new causes of action are not plainly lacking in merit, that branch of NYSEG's motion seeking leave to amend is granted. To the extent NYSEG moves for summary judgment on its negligence and promissory estoppel causes of action, however, the motion must be denied.
It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978] [citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) . Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Vega v Restani Constr. Corp.18 NY3d 499, 503 [2012]).
It is undisputed that under both the common law and the applicable statute and regulation (Highway Law § 319 [2]; 17 NYCRR 131.11) the State is empowered to require relocation of utility poles " 'whenever the public health, safety or convenience requires the change to be made" (Matter of Consolidated Edison Co. of N.Y. v Lindsay, 24 NY2d 309, 316 [1969]). The rationale for the rule, as aptly noted by the Court of Appeals, is that "the city should not be required to recompense the company for loss of use of a privilege which it obtained without paying the city a penny for its use . . . Certainly the company has no vested property right to use any particular street but must assume the risk of having to relocate as part of its general right to use the streets" (id. at 318). Only when it is shown that a state or municipality's directive to relocate was issued arbitrarily or wantonly may expenses incurred as a consequence of the relocation be recovered (New York Tel. Co. v City of New York, 95 AD2d 282 [2d Dept 1983], affd 65 NY2d 681 [1985]; see also Trocom Constr. Corp. v Consolidated Edison Co. of N.Y., 7 AD3d 434 [1st Dept 2004]; City of New York v Consolidated Edison Co. of N.Y., 1 AD3d 282 [1st Dept 2003]). As noted by the Court in New York Tel. Co., "This standard, as opposed to one of ordinary negligence, would, . . . more closely be in keeping with the long-standing rule that '[l]awfully authorized planning by governmental bodies has a unique character deserving of special treatment as regards the extent to which it may give rise to tort liability' " (95 AD2d at 286-287, quoting Weiss v Fote, 7 NY2d 579 [1960]). Consequently, damages are not recoverable on a negligence cause of action unless the directive to relocate was found to be issued arbitrarily or wantonly.
In support of its motion for summary judgment on its negligence cause of action, NYSEG contends that NYSDOT's approval of the location of New Structure 21A was arbitrary and wanton because it failed to consider whether there would be any further excavation of the soil bank in which New Structure 21A would be located before approving the relocation plan. In opposition to NYSEG's motion, defendant submits affidavits from John J. Baylor, P.E., Kirk E. Boothroyd, P.E., Marvin Fetterman, P.E., and Richard J. Kotasek, P.E., all of whom state, contrary to the representations of Mr. Rossiter, that they have no recollection of discussing the need for a soil bank to support the proposed New Structure 21A at the February 9, 2011 meeting. More to the point, all of these individuals indicate that their review of NYSEG's relocation plan was for the sole purpose of determining whether or not the proposed location would interfere with the project work, not to advise NYSEG of the manner in which the installation was to be performed (Baylor affidavit, ¶ 6; Boothroyd affidavit, ¶ 12; Fetterman affidavit, ¶ 6; Kotasek affidavit, ¶ 3). Given the disputed fact issues regarding NYSDOT's awareness of the need for the embankment to support New Structure 21A and its purported de minimis role in planning its installation, it can not be concluded as a matter of law that NYSDOT acted arbitrarily or wantonly in allegedly approving the new location. Summary judgment on NYSEG's negligence cause of action must therefore be denied.
Turning to NYSEG's proposed cause of action for negligent misrepresentation, such a claim "requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]; see also Parrott v Coopers & Lybrand, 95 NY2d 479 [2000]; Kimmell v Schaefer, 89 NY2d 257 [1996]; Heard v State of New York, 82 NY2d 66 [1993]; Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417 [1989]; LM Bus. Assoc., Inc. v State of New York, 124 AD3d 1215 [3d Dept 2015], lv denied 25 NY3d 905 [2015]). While NYSEG established in support of its motion the elements of a claim for negligent misrepresentation, NYSDOT denies that its representatives advised Mr. Rossiter of NYSEG that no further excavation would be performed in the area where New Structure 21A was planned. The affidavits of John J. Baylor, P.E., Kirk E. Boothroyd, P.E., Marvin Fetterman, P.E., and Richard J. Kotasek, P.E., indicate, contrary to the representations of Mr. Rossiter, that they have no recollection of discussing the need for a soil bank to support the proposed New Structure 21A at the February 9, 2011 meeting. Moreover, all of these individuals state that the project plans provided to NYSEG (sheet numbers 191 and 214 in particular) clearly showed the planned excavation of the area for a concrete sidewalk. Thus, NYSDOT raised questions of fact in opposition to NYSEG's which, if credited, may defeat NYSEG's claim of negligent misrepresentation. Specifically, questions of fact exist regarding whether or not the alleged misrepresentations were made or, if they were, whether NYSEG's alleged reliance on the oral representations was reasonable given the alleged depiction of the excavation in the plans which were provided to NYSEG. While NYSEG disputes that it received the particular plans in which the excavation for a concrete sidewalk in the area was depicted, this merely presents a question of fact for resolution at trial. Consequently, NYSEG's motion for partial summary judgment on its cause of action for negligent misrepresentation must be denied.
NYSDOT does not argue in opposition to NYSEG's motion that it owed no duty to NYSEG or that it is immune from liability based upon discretionary governmental decision-making. Indeed, having sufficiently established the requisite elements of a claim for negligent misrepresentation, NYSEG likewise established that NYSDOT owed it a duty of care, the alleged breach of which was not a matter of discretion for which the State may be entitled to immunity (see Eastwood v State of New York, UID No. 2014-015-588 [Ct Cl, Collins, J. Dec. 17, 2014]; Long Is. Conservatory, Ltd. v State of New York, 44 Misc 3d 1231[A], 2011 NY Slip Op 52560[U] [Ct Cl, Hard, J. 2011]).
The elements of a cause of action for promissory estoppel are "a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise" (Agress v Clarkstown Cent. School Dist., 69 AD3d 769, 771 [2d Dept 2010]; see also Sabre Intl. Sec., Ltd. v Vulcan Capital Mgt., Inc., 95 AD3d 434 [1st Dept 2012]; Clifford R. Gray, Inc. v LeChase Constr. Servs., 51 AD3d 1169 [3d Dept 2008]; Bunkoff Gen. Contrs. v Dunham Elec., 300 AD2d 976 [3d Dept 2002]). While estoppel is generally unavailable against a State or municipality, a government agency or department "may be subject to estoppel when a manifest injustice has resulted from actions taken in its proprietary or contractual capacity" (Allen v Board of Educ. of Union Free School Dist. No. 20, 168 AD2d 403 [2d Dept 1990], appeal dismissed 77 NY2d 939 [1991]; Matter of Branca v Board of Educ., Sachem Cent. School Dist. at Holbrook, 239 AD2d 494 [2d Dept 1997]). The same reasons requiring denial of NYSEG's motion for partial summary judgment on its negligent misrepresentation cause of action require denial of its partial summary judgment motion on its cause of action for promissory estoppel. NYSDOT disputes NYSEG's assertion that it represented that the area of its intended installation of the New Structure 21A would not be excavated and, in any event, asserts that NYSEG's alleged reliance on these representations was unreasonable given the alleged depiction of the excavation in the construction plans. Accordingly, fact issues exist requiring denial of NYSEG's motion for partial summary judgment.
Based on the foregoing, NYSEG's motion is granted to the extent it seeks to amend its claim and NYSEG is directed to file and serve its amended claim within 14 days of the date this Decision and Order is filed. That branch of NYSEG's motion for partial summary judgment is denied.
April 8, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated October 30, 2015; 2. Affirmation of Mary P. Moore dated October 30, 2015 with Exhibits A - K; 3. Affidavit of Michael Rossiter sworn to October 26, 2015 with Exhibits A - G; 4. Memorandum of Law of Jeffrey Clark and Mary P. Moore dated October 30, 2015; 5. Affirmation of Aaron J. Marcus dated December 7, 2015 with Exhibits A - O; 6. Memorandum of Law of Aaron J. Marcus dated December 7, 2015; 7. Affirmation of Mary P. Moore and dated January 5, 2016 with Exhibits A - B; 8. Affidavit of Michael Rossiter sworn to January 4, 2016; 9. Affidavit of Paul Blakelock sworn to January 5, 2016; 10. Memorandum of Law of Jeffrey Clark and Mary P. Moore dated January 5, 2016; 11. Surreply affirmation of Aaron J. Marcus dated January 7, 2016 with exhibit.