Opinion
# 2014-015-030 Claim No. None Motion No. M-85507
01-02-2015
SUBURBAN RESTORATION CO., INC. v. THE STATE OF NEW YORK
The Law Offices of Seth W. Berman, P.C. By: Seth W. Berman, Esquire Honorable Eric T. Schneiderman, Attorney General By: Eidin Beirne, Esquire Assistant Attorney General
Synopsis
Motion to renew prior motion for admission pro hac vice and for late claim relief was denied. Potential merit of proposed contract claims was not established and timeliness of application relating to several contracts could not be determined.
Case information
| UID: | 2014-015-030 |
| Claimant(s): | SUBURBAN RESTORATION CO., INC. |
| Claimant short name: | SUBURBAN RESTORATION |
| 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): | None |
| Motion number(s): | M-85507 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | The Law Offices of Seth W. Berman, P.C. By: Seth W. Berman, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Eidin Beirne, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 2, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Charles Shaw (Shaw), an attorney duly admitted to practice law in the State of New Jersey, moves for renewal of his prior motion for admission, pro hac vice, and for permission to file and serve a late claim on behalf of Suburban Restoration Co., Inc. (Suburban), a New Jersey corporation.
Shaw and another attorney admitted to practice law in the State of New Jersey previously moved for admission, pro hac vice, and for permission to file and serve a late claim on behalf of Suburban. The motions were denied because the rules governing the admission of attorneys to New York practice pro hac vice made clear that "[n]o attorney may be admitted pro hac vice . . . unless he or she is associated with an attorney who is a member in good standing of the New York bar, who shall be the attorney of record in the matter" (22 NYCRR 520.11 [c] [emphasis added]). The New York attorney with whom Shaw and the other New Jersey practitioner were associated was not the attorney of record for Suburban and the motions were, therefore, denied.
In support of the instant application for Shaw's pro hac vice admission, Seth W. Berman (Berman) states in an affirmation that he is an attorney licensed to practice law in the State of New York and, in a document entitled Motion For Admission Pro Hac Vice, represents that "I will act as attorney of record in this matter". The proposed claim submitted in support of the late claim application reflects Mr. Berman as the attorney of record.
Notably, both Shaw and another New Jersey attorney, Gerald William Delaney, "certify" that they "have been retained by . . . [Suburban] in this matter" (certifications of Shaw and Delaney).
To the extent the instant motion seeks renewal, it is well settled that " 'a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted' " (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [3d Dept 2007]; quoting Wahl v Grippen, 305 AD2d 707, 707 [3d Dept 2003]; see also Cippitelli v County of Schenectady, 307 AD2d 658, 658 [3d Dept 2003]; CPLR 2221[e]). The instant motion is not based upon newly discovered evidence. Rather, it is based upon Shaw's attempt to rectify the deficiencies contained in his prior application for pro hac vice admission. Nevertheless, even if renewal was appropriate, and Shaw's association with Berman satisfied the requirements for his pro hac vice admission, the application must nevertheless be denied as Suburban's application for late claim is deficient in several respects.
Initially, as defense counsel points out, the only paper submitted which could possibly qualify as a notice of motion, entitled Motion For Admission Pro Hac Vice, makes no mention at all of a late claim application pursuant to Court of Claims Act § 10 (6). Rather, Suburban's application for late claim relief is raised only in a memorandum of law. The procedures prescribed in the Civil Practice Law and Rules for bringing motions are applicable in the Court of Claims (see 22 NYCRR § 206.8 [a]). CPLR 2214 (a) requires that a notice of motion specify "the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor." The document entitled Motion For Admission Pro Hac Vice fails to comply with these requirements.
Although the movants placed a notice of motion for late claim relief as the last page of Exhibit B annexed to their letter reply dated September 29, 2014, such notice is obviously untimely and failed to fulfill the notice requirements of CPLR 2211 and 2214 (a) and (b).
Nor does movant establish that late claim relief would be an appropriate exercise of discretion in this case.
The first issue for determination upon a late claim motion is whether the application is timely. Section 10 (6) requires that a motion to file a late claim be made "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." An action for breach of contract against a citizen of the state must be asserted within six years following its accrual (CPLR 213 [2]). A breach of contract cause of action asserted against a citizen of the state accrues, and the statute of limitations begins to run, at the time of the breach (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]; John J. Kassner & Co. v City of New York, 46 NY2d 544, 550 [1979]; Tulger Constr. Co. v State of New York, 45 Misc 3d 1224 [A] [Ct Cl 2013]). Here, the proposed claim seeks damages for the alleged breach of eight separate contracts for the provision of cleaning, construction and repair services at the following institutions: (1) Manhattan Psychiatric Center (contract approved by Comptroller on September 29, 2006); (2) Rockland Psychiatric Center (contract approved by Comptroller on June 2, 2008); (3) Sing Sing Correctional Facility (contract approved by Comptroller on July 28, 2008); (4) Creedmore Psychiatric Center (contract approved by Comptroller on August 11, 2010); (5) Sagamore Children's Psychiatric Center (contract approved by Comptroller on November 6, 2008); (6) Woodbourne Correctional Facility (contract approved by Comptroller on January 12, 2009); (7) Creedmore Psychiatric Center (contract approved by Comptroller on May 21, 2009), and (8) Kingsboro Psychiatric Center (contract approved by Comptroller on October 14, 2009) (see proposed claim, ¶¶ 6-13). Insofar as neither the contract terms nor the date the causes of action accrued are alleged in the proposed claim, the Court is unable to determine whether the claims relating to the first three contracts referenced above are timely. Assuming the contracts were breached, if at all, during or after completion of the contract work, it appears the late claim application relating to the remaining five contracts is timely, the instant motion having been filed on August 12, 2014.
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Matter of Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
The excuses advanced by Suburban for failing to timely file and serve the claim are that it was financially unable to retain an attorney and was unaware of the time requirements of the Court of Claims Act because they were not specifically set forth in the contracts. Neither the inability to secure counsel nor ignorance of the law is an acceptable excuse for the failure to timely file and serve a claim (Lerner v State of New York, 72 AD3d 406 [1st Dept 2010], lv denied 15 NY3d 703 [2010]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Musto v State of New York, 156 AD2d 962 [4th Dept 1989]). This factor weighs against granting the application.
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, the State does not assert that it will be substantially prejudiced by the delay and, as a result, these factors weigh in Suburban's favor.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Fernandez v State of New York, 43 Misc 3d 1221 [A] [Ct Cl 2014]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). While this threshold is a low one, more than conclusory allegations are necessary to demonstrate the potential merit of a claim (Langner v State of New York, 65 AD3d 780, 783-784 [3d Dept 2009]; Matter of Sandlin v State of New York, 294 AD2d 723, 725 [3d Dept 2002], lv denied 99 NY2d 589 [2003]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]). Here, the proposed claim does little more than set forth the total sum claimed for breach of the eight contracts. Inasmuch as the claim fails to allege the provisions of the contracts Suburban claims were breached, it fails to state a cause of action (see Canzona v Atanasio, 118 AD3d 837, 839 [2d Dept 2014]; Sutton v Hafner Valuation Group, Inc., 115 AD3d 1039, 1042 [3d Dept 2014]; Barker v Time Warner Cable, Inc., 83 AD3d 750, 751 [2d Dept 2011]; Trump on the Ocean, LLC v State of New York, 79 AD3d 1325 [3d Dept 2010], lv dismissed and denied 17 NY3d 770 [2011]; Woodhill Elec. v Jeffrey Beamish, Inc., 73 AD3d 1421 [3d Dept 2010]). The cause of action for breach of the implied covenant of good faith and fair dealing also fails, as a matter of law, "because the implied obligation is only 'in aid and furtherance of other terms of the agreement of the parties' . . . and claimant has not alleged any applicable term of the [contract] to support it" (Trump on the Ocean, LLC v State of New York, 79 AD3d at 1326, quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 304 [1983] and citing Dalton v Educational Testing Serv., 87 NY2d 384, 398 [1995]).
The lack of detail in the proposed claim precludes the Court from determining its potential merit and the affidavit of Roman Markovic, self-proclaimed managing member and representative of Suburban, fails to fill in the gaps. Mr. Markovic avers that the State was well aware of their obligations to Suburban by virtue of the many invoices that were sent, that the State's failure to pay Suburban resulted in severe financial duress, and that it was forced into financial "duress" as a result of the State's conduct (Markovic affidavit, ¶ 3). Mr. Markovic purports to explain Suburban's failure to timely file and serve a claim by reference to the fact that "such dispute resolution provisions" (apparently referring to the time limitations set forth in Court of Claims Act § 10 [4]) were not outlined in the contracts (id. at ¶ 6). Nevertheless, Mr. Markovic indicates that accurate records of outstanding balances owed were maintained in the form of a "book account" (id. at 8). While this may be, Mr. Markovic's affidavit, like the proposed claim, is entirely conclusory and insufficient to provide this Court with reason to believe a valid cause of action exists.
With regard to the proposed cause of action for unjust enrichment, in IDT Corp. v Morgan Stanley Dean Witter & Co. (12 NY3d 132, 142 [2009]), the Court of Appeals reiterated the familiar principle that such claims are quasi-contractual obligations imposed by equity to prevent injustice and are, therefore, precluded where there is a contract governing the particular subject matter in issue. Given the undisputed existence of the eight contracts at issue here, it appears the unjust enrichment cause of action lacks merit as a matter of law (see also Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]; see also Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415 [1st Dept 2014]; Hodges v Cusanno, 94 AD3d 1168 [3d Dept 2012]).
With regard to the second cause of action asserted in the proposed claim, denominated "book account", there is no New York statute authorizing such an action (Waldman v Englishtown Sportswear, 92 AD2d 833, 836 [1st Dept 1983]).
To the extent the State contends that the provisions of Business Corporation Law § 1312 (a) preclude Suburban, a foreign corporation, from maintaining the instant lawsuit in the Court of Claims, Suburban sufficiently established in reply that it is authorized to do business in New York. As a result, Business Corporation Law § 1312 (a) does not operate as a bar to the proposed claim (see generally Peak Fin. Partners, Inc. v Brook, 119 AD3d 539 [2d Dept 2014]; Acno-Tec Ltd. v Wall St. Suites, L.L.C., 24 AD3d 392 [1st Dept 2005]).
Finally, contrary to references in the proposed claim, a sample copy of the contracts was not attached to the proposed claim submitted to the Court, nor were such copies offered in support of the instant motion (see proposed claim, ¶ 14). As a result, it is unclear whether or not contractual alternative dispute resolution procedures were available or utilized.
Upon balancing all of the factors enumerated in Court of Claims Act § 10 (6), including the all-important issue of merit, the Court finds that these factors weigh against granting the movants' application to serve and file a late claim. Accordingly, the motion for admission pro hac vice and late claim relief is denied.
January 2, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion for admission pro hac vice;
Certificate of good standing of Charles Shaw;
Certificates of good standing of Gerald William Delaney;
Proposed claim;
Affirmation of Seth W. Berman dated August 7, 2014;
Certification of Charles Shaw dated August 11, 2014;
Certification of Gerald William Delaney dated August 11, 2014;
Memorandum of Law of Seth W. Berman dated August 7, 2014;
Affidavit of Roman Markovic sworn to August 7, 20[14];
Affirmation in opposition of Eidin Beirne dated September 12, 2014 with exhibits;
Memorandum of Law of Eidin Beirne dated September 12, 2014;
Reply letter dated September 29, 2014 of Seth W. Berman with exhibits.