Opinion
# 2016-015-145 Claim No. 127318 Motion No. M-88065
06-15-2016
SANO-RUBIN CONSTRUCTION CO., INC. v. THE STATE OF NEW YORK
Kevin Laurilliard, Esquire Honorable Eric T. Schneiderman, Attorney General By: Brett R. Eby, Esquire Assistant Attorney General
Synopsis
Contract claim was dismissed for failing to meet the pleading requirements of Court of Claims Act §11(b).
Case information
| UID: | 2016-015-145 |
| Claimant(s): | SANO-RUBIN CONSTRUCTION CO., INC. |
| Claimant short name: | SANO-RUBIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127318 |
| Motion number(s): | M-88065 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Kevin Laurilliard, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Brett R. Eby, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 15, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the instant breach of contract claim pursuant to CPLR 3211 (a) (1), (2) and (7) on the grounds it fails to meet the pleading requirements of Court of Claims Act § 11 (b), fails to state a cause of action, and seeks equitable relief which this Court lacks subject matter jurisdiction to provide.
Claimant alleges that it entered into a contract with the State of New York by and through its State University of New York "for renovations to Defendant's service building complex ("Project")" (claim, ¶ 2) and that "[s]ubsequent to Claimant's commencement of its work on the Project, Defendant made changes to its design for the Project. Such design changes included, but were not limited, to the excavation/foundation, the offices within the building and the HTHW Heat Exchanger, Piping & Valves" (claim, ¶ 4). While claimant alleged in the claim that the contract was attached thereto as Exhibit A (see claim, ¶ 2), the contract was, in fact, not attached to the filed claim nor, according to defense counsel, was it attached to the claim served on the defendant. Claimant alleges further that it submitted timely requests for compensation for additional costs and expenses incurred in connection with the design changes (Claim, ¶¶ 5,6), which were denied, and a statement of contention, allegedly attached to the claim as Exhibit C, was submitted. Again, there was no Exhibit C attached to the filed claim. Claimant alleges that its request for additional payment was denied in a letter dated February 18, 2015 received from the Director of the State University of New York (SUNY) which indicated, in part, that the State " 'maintains its same position as previously communicated that [claimant] is not entitled to the additional compensation that is being requested' " (claim, ¶ 8, quoting letter from the Director of SUNY at Albany dated February 18, 2015). Claimant alleges the defendant breach its contractual payment obligations in that
"[s]ection 3.05 (7) of the Contract permits the Claimant to recover its damages that are caused by certain delays, including but not limited to uncontemplated delays or delays resulting from SUNY's breach of a fundamental obligation. SUNY's design changes caused uncontemplated delays and delays resulting from SUNY's breach of a fundamental obligation" (claim, ¶ 11).
Defendant contends that the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) in that it fails to sufficiently allege the nature of the claim or the date when and place where it accrued. In this regard, defendant asserts that the allegations in the claim are insufficient to permit an investigation into the matter or an assessment of its potential liability because the contract allegedly breached was not identified in the claim, nor were the purported "design changes" and additional work necessitated as a result thereof sufficiently described.
In opposition to the motion, claimant's counsel asserts that the claim should not be dismissed because "the New York State Attorney General's office was provided significant detail in the article 78 petition and its exhibits, the Notice of Intention to File a Claim and the exhibits referenced in the claim" (affirmation of Kevin Laurilliard, ¶ 5). Although he was unaware the exhibits were inadvertently omitted from the claim, counsel argues that they were attached to the article 78 petition personally served on the Attorney General's Office on July 6, 2015. Claimant contends that the claim accrued on February 24, 2015, the date it received the letter denying its claim for additional compensation.
The State's waiver of immunity from suit is contingent upon compliance with the specific conditions set forth in article II of the Court of Claims Act, including the pleading requirements contained in § 11 (b) (Court of Claims Act § 8; Lepkowski v State of New York, 1 NY3d 201 [2003]; Davis v State of New York, 64 AD3d 1197 [4th Dept 2009], lv denied 66 AD3d 1504 [4th Dept 2009], lv denied 13 NY3d 717 [2010]). "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
Section 11(b) of the Court of Claims Act requires that a claim state "the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." "Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result" (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015], quoting Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]; see also Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911 [2010]; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005], lv denied 7 NY3d 701 [2006]). The guiding principle in determining the sufficiency of a claim is whether it is sufficiently definite " 'to enable the State. . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . ." (Lepkowski v State of New York, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). While pleading with "absolute exactness" is not required, a cause of action must be pled with sufficient specificity so as not to mislead, deceive or prejudice the rights of the State (Heisler v State of New York, 78 AD2d at 767). Here, defendant contends that the allegations in the claim are insufficiently specific to meet this standard because there are no facts alleged which would enable the defendant to identify the contract sued upon, the date when or place where the claim accrued or to assess its liability under the circumstances. The Court agrees.
The allegation in the claim that "[c]laimant entered into a written contract ("Contract") for renovations to Defendant's service building complex" (claim, ¶ 2) fails to sufficiently identify the contract sued upon and neither the date when nor place where the claim accrued is alleged in the claim.
First, claimant's contention that the claim accrued on the date the letter quoted in paragraph eight of the claim was received overlooks the general rule that a claim accrues when damages are ascertainable, which is generally when 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] [internal quotation marks and citation omitted]; see also Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. (Wager Constr. Corp.), 37 NY2d 283, 290 [1975]; 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]; Tom L. LaMere & Assoc., Inc. v City of Syracuse Bd. of Educ., 48 AD3d 1050 [4th Dept 2008]; Inter-Power of N.Y. v State of New York, 230 AD2d 405, 408 [3d Dept 1997]). Secondly, and more critical in the instant matter, " '[T]he State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11' " (Hargrove v State of New York, 138 AD3d 777, 778 [2d Dept 2016], quoting Cobin v State of New York, 234 AD2d 498,499 [2d Dept 1996], lv denied 90 NY2d 925 [1997], rearg denied 91 NY2d 849 [1997]; see also Lepkowski, 1 NY3d at 208 [the State is not required "to ferret out or assemble information that section 11 [b] obligates the claimant to allege"]). The filed claim not only fails to set forth the date of accrual, but also fails to identify the contract sued upon, the location where the work was performed, the nature of the work performed and the specific events giving rise to the breach of contract alleged. The claimant's failure to provide the information required by Court of Claims Act § 11 (b) renders the claim jurisdictionally defective and subject to dismissal. The fact that either the notice of intention or the article 78 petition may have provided the defendant factual details regarding the nature of the claim does not relieve the claimant from compliance with the jurisdictional requirements of Court of Claims Act § 11 (b). Accordingly, the claim must be dismissed.
To the extent claimant's counsel seeks leave to amend the claim in his affirmation in opposition, a jurisdictionally defective pleading may not be cured by amendment (Dinerman v NYS Lottery, 69 AD3d 1145 [3d Dept 2010], lv dismissed 15 NY3d 911 [2010]; Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383 [Ct Cl, 1994]).
Based on the foregoing, defendant's motion is granted and the claim is dismissed.
June 15, 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 February 8, 2016;
2. Affirmation of Brett R. Eby dated February 8, 2016;
3. Memorandum of Law of Brett R. Eby dated February 8, 2016;
4. Affirmation of Kevin Laurilliard dated March 9, 2016 with exhibits;
5. Memorandum of Law Reply of Brett R. Eby dated March 16, 2016.