Calendar Date: February 21, 2017
Camardo Law Firm, PC, Auburn (Justin T. Huffman of counsel),
T. Schneiderman, Attorney General, Albany (Owen Demuth of
counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from an order of the Court of Claims (Collins, J.), entered
October 7, 2015, which granted defendant's motion to
dismiss the claim.
is a contractor that was authorized to perform certain
highway improvement work pursuant to five highway work
permits that defendant, through the Department of
Transportation (hereinafter DOT), issued in 2005 and 2006
(see Highway Law § 52). The permitted highway
work was incident to the construction of a large retail
facility in the City of Oneida, Madison County. The work did
not progress as expected and, in June 2008, DOT notified
claimant that, unless the permitted work was timely resumed
and completed, it would undertake the work with its own
contractor and proceed against claimant and its surety for
the costs. When claimant failed to comply, DOT issued a
notice of default in August 2008 and then completed the
highway work through an emergency contractor. After filing a
notice of intention to file a claim in March 2013, claimant
commenced this action against defendant in January 2015,
alleging that DOT breached a construction contract governing
claimant's highway work and that its drainage work
flooded claimant's land. Defendant moved to dismiss the
claim pursuant to CPLR 3211 (a) (1), (2) and (7) and Court of
Claims Act §§ 10 (4) and (11) (b). The Court of
Claims granted defendant's motion, finding that the claim
failed to state a cause of action (see CPLR 3211 [a]
) and was jurisdictionally defective because it did not
comply with the pleading requirements in the Court of Claims
Act (see Court of Claims Act § 11 [b]).
Claimant now appeals and we affirm, albeit on an alternative
for breach of contract must be filed in the Court of Claims
within six months after the accrual of the claim, or within
two years from such accrual where the claimant has filed a
timely notice of claim (see Court of Claims Act
§ 10 ). A claim to recover damages to property must
be filed either within 90 days after accrual of the claim or
within two years after accrual where a timely notice of claim
has been filed (see Court of Claims Act § 10
; Ro Jo Lo Partners v State of New York, 226
A.D.2d 896, 896 ). "A claim accrues when damages
are ascertainable" (Ro Jo Lo Partners v State of New
York, 226 A.D.2d at 896 [internal quotation marks and
citation omitted]; see Waters of Saratoga Springs v State
of New York, 116 A.D.2d 875, 877 ).
alleges in its notice of claim that it did not perform any
work after DOT issued a stop work order in May 2008, which
claimant points to as the breach of "the contract"
that obligated its surety for an allegedly excessive amount.
Claimant also alleges that DOT's negligent design,
construction and maintenance of drainage at the site of the
permitted work caused flooding and damaged its property. In
support of its motion, defendant relied on the highway work
permits that claimant obtained in 2006 and the August 2008
notice of default to claimant. According to defendant, the
emergency contractor completed the unfinished work in
November 2008 at a cost exceeding $558, 000. In November
2011, claimant's surety paid defendant $450, 000 in
connection with the permitted work. Defendant then commenced
an action against claimant in May 2012 to recover the balance
of the costs due for completing the work, which action
apparently remains pending.
view, even assuming without deciding that there was an
agreement between claimant and defendant, the damages for the
alleged breach were clearly ascertainable more than six
months prior to March 2013 and more than two years prior to
December 2014. As for the property damage claim, claimant
alleges in its notice of claim that the flooding first
occurred in July and August 2006, prior to the date when the
work was completed. With the work completed in November 2008,
any alleged damages must have been ascertainable years in
advance of the claim. Absent a timely filed claim or notice
of claim, the Court of Claims did not have subject matter
jurisdiction to resolve the claim (see Lyles v State of
New York, 3 N.Y.3d 396, 400 ; Matter of Best v
State of New York, 42 A.D.3d 699, 700 ; Conner
v State of New York, 268 A.D.2d 706, 707 ).
Accordingly, we find that the claim was properly dismissed.
The parties' remaining arguments need not be addressed.
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
that the order is affirmed, without costs.