New York State Court of Claims

New York State Court of Claims
SUBURBAN v. STATE OF NEW YORK, # 2019-015-137, Claim No. 132418, Motion No. M-93546


Defendant's pre-answer dismissal motion was granted as this contract claim was untimely.

Case information

UID: 2019-015-137
Claimant short name: SUBURBAN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 132418
Motion number(s): M-93546
Cross-motion number(s):
Claimant's attorney: Law Offices of Charles Shaw, P.C.
By: Karilyn M. Ward, Esq.
Defendant's attorney: Honorable Letitia James, Attorney General
By: Bruce D. Feldman, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 30, 2019
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


In a pre-answer motion to dismiss, defendant asserts pursuant to CPLR 32111 (a) (2), (5) and (7) that the claim: (1) is untimely, (2) is barred by either collateral estoppel or res judicata, (3) fails to state a cause of action, and (4) fails to satisfy the jurisdictional pleading requirements of Court of Claims Act 11 (b).

Claimant seeks damages for the alleged breach of seven construction contracts to provide "abatement, construction and/or repair services" at the Manhattan Psychiatric Center, Rockland Psychiatric Center, Sing Sing Correctional Facility, Sagamore Children's Psychiatric Center, Woodbourne Correctional Facility, Kingsboro Psychiatric Center, and Creedmore Psychiatric Center (Claim, 16 -22).

Claimant's prior motion for leave to serve and file a late claim was denied by Decision and Order dated January 2, 2015 (defendant's Exhibit A).(2) Insofar as neither the contract terms nor the date the causes of action accrued were set forth in the proposed claim, the Court was unable to determine whether the application was timely filed "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act 10 [6]). Nor was the motion supported by a reasonable excuse for the delay in serving and filing the claim, and there was insufficient detail in both the proposed claim and the affidavit submitted in support of the motion to conclude that a valid cause of action exists.

The instant claim was thereafter filed on December 19, 2018 and personally served on January 29, 2019.

A claim for breach of contract must be filed and served upon the Attorney General within six months of accrual unless a notice of intention to file a claim is served within that time (Court of Claims Act 10 [4]). Where a notice of intention is served in accordance with one of the methods prescribed by Court of Claims Act 11 (a) (i), "the claim shall be filed and served upon the attorney general within two years after such accrual" (Court of Claims Act 10 [4]). Here, claimant alleges that the claim accrued upon receipt of a letter from an attorney for the Office of General Services, dated December 27, 2016. According to the pertinent allegation in the claim "[i]t was not until Claimant received a correspondence from Kieran Broderick, Esq., Associate Attorney for the Office of General Services (OGS), dated December 27, 2016, that it became clear to Claimant that Defendants never had any intention of paying Claimant all sums due and owing" (Claim, 27). However, even assuming for the sake of argument that the claim did not accrue until this date, claimant's failure to serve its notice of intention to file a claim in a manner which comports with the service requirements of the Court of Claims Act did not extend the time for service of the claim.

Court of Claims Act 11 (a) (i) requires that a claim or notice of intention to file a claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general." Inasmuch as the filing and service requirements of Court of Claims Act 10 and 11 are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 [1981]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Absent waiver of the defense of improper service of the claim or notice of intention to file a claim (Court of Claims Act 11 [c]), service by a mode of delivery which fails to strictly fulfill the statutory criteria is ineffective (Costello v State of New York, 164 AD3d 1420 [2d Dept 2018]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 [2016]; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]). Thus, in Femminella v State of New York (71 AD3d 1319 [3d Dept 2010]) the Appellate Division, Third Department, specifically held that service of a notice of intention by Federal Express, the mode of service utilized here, was inadequate and did not comply with the requirements of Court of Claims Act 11 (a) (i).

Claimant's reliance on LaFrance v State of New York (144 AD2d 911 [4th Dept 1988]) for a contrary proposition is misplaced. That case condoned service of a notice of intention by Federal Express where personal delivery was thought to have been made upon an Assistant Attorney General, thereby fulfilling the literal requirements for personal service under CPLR 307 (1). However, as the affidavit of Angel Davis, Administrative Specialist II in the Albany Office of the Attorney General, makes clear, the Federal Express envelope here was delivered to the New York State Office of General Services where such deliveries are x-rayed, sorted by agency and held for pick up by the various State agencies. Thus, there was no personal delivery upon an Assistant Attorney General as was thought to be the case in LaFrance. As defense counsel points out, defendant's motion for reargument in LaFrance was granted, and the determination vacated, because the Court premised its prior decision on the mistaken belief that the recipient of the Federal Express envelope was an Assistant Attorney General when, in fact, the recipient was a secretary.

Accordingly, claimant's service of its notice of intention by Federal Express did not extend the time for service and filing of the claim. As a result, even if it were assumed that the claim did not accrue until receipt of the State's December 27, 2016 letter, the claim filed on December 19, 2018 was untimely.(3)

Based on the foregoing, the defendant's motion is granted and the claim is dismissed.

April 30, 2019

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of motion dated February 15, 2019;
  2. Affirmation dated February 15, 2019, with Exhibits A-E;
  3. Letter brief in opposition dated April 9, 2019;
  4. Affirmation of Roman Markovic sworn to April 9, 2019, with Exhibits A-L;
  5. Reply affidavit of Angel Davis sworn to April 15, 2019, with Exhibit A;
  6. Reply memorandum of law dated April 15, 2019.

2. A prior motion by claimant's counsel for admission pro hac vice and to file a late claim was also denied by Decision and Order dated July 10, 2014. Denial was required since it did not appear that claimant's counsel was associated with a member of the New York bar who appeared as the attorney of record in the matter (see 22 NYCRR 520.11 [c]).

3. According to the affidavits of service filed in the Office of the Clerk of the Court of Claims, the claim was not served until January 29, 2019. Thus, even if the notice of intention effectively extended the time to file and serve the claim by two years, the claim was not both filed and served within two years of claimant's proposed date of accrual on December 27, 2016 (see Dreger v State of New York, 81 NY2d 721 [1992]).