Opinion
# 2021-015-046 Motion No. M-96585
04-26-2021
AFP 107 CORP. v. CITY UNIVERSITY OF NEW YORK
Saunders Kahler, L.L.P. By: William D. Wallace, Esq. Honorable Letitia James, Attorney General By: Anthony Rotondi, Esq., Assistant Attorney General
Synopsis
Late claim motion alleging breach of contract for hotel fees was granted.
Case information
| UID: | 2021-015-046 |
| Claimant(s): | AFP 107 CORP. |
| Claimant short name: | AFP 107 Corp. |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY 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): | NONE |
| Motion number(s): | M-96585 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Saunders Kahler, L.L.P. By: William D. Wallace, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Anthony Rotondi, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 26, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, AFP 107 Corp. (AFP 107), seeks leave to serve and file a late claim pursuant to Court of Claims Act § 10 (6).
AFP 107, doing business as Hilton Albany, entered into a contract with Brookdale Center for Healthy Aging
Hunter College, of which the Brookdale Center for Healthy Aging is a part, is a "senior college" within the City University system (see Education Law § 6202 [5]). Education Law § 6224 (4) confers exclusive jurisdiction upon the Court of Claims for claims against the City University of New York for wrongful death, tort, and: "breach of a contract relating to construction, reconstruction, improvement, maintenance, operation, purchase or personal services entered into by such university in connection with a senior college of such university or any officer, agent, servant or employee of a senior college of such university in the course of his employment on behalf of such university in the same manner and to the extent provided by and subject to the provisions of the court of claims act."
("Brookdale Center") for the rental of rooms and conference facilities for an event which took place from October 28, 2019 through October 31, 2019. It is not disputed that Brookdale Center is a department of Hunter College, which is a senior college within the City University of New York system. John D'Adamo, General Manager of Hilton Albany, states in an affidavit submitted in support of the motion that respondent incurred charges in the amount of $87,081.60 during the period of October 28, 2019 through October 31, 2019. Mr. D'Adamo states further that AFP 107 submitted invoices for this amount to the respondent and received two wire transfer payments totaling $73,225.78 on June 15, 2020. In a letter dated January 11, 2021, AFP 107 provided an account statement and requested payment of the difference between the amount of the invoice and the lesser amount paid by Brookdale Center (movant's Exhibit B). According to Mr. D'Adamo, the account balance remains unpaid and AFP 107 now seeks permission to file and serve a late claim for the unpaid balance of $13,855.82.
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act § 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." Breach of contract claims, whether express or implied, are governed by a six-year statute of limitations set forth in article two of the CPLR (CPLR 213 [2]). Accordingly, the instant motion filed on March 24, 2021 is timely with respect to movant's proposed breach-of-contract claim.
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
This Court has broad discretion in deciding a motion to permit the late filing of a claim (Calverley v State of New York, 187 AD3d 1426 [3d Dept 2020]; Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016], appeal dismissed, lv denied 28 NY3d 958 [2016]). " 'No one factor is deemed controlling, nor is the presence or absence of any one factor determinative' " (Hyatt v State of New York, 180 AD3d 764, 766 [2d Dept 2020], lv denied 35 NY3d 909 [2020], quoting Casey v State of New York, 161 AD3d 720, 721 [2d Dept 2018]; see also Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]). 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 Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Matter of Martinez v State of New York, 62 AD3d 1225; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
The excuse advanced by movant and its counsel for failing to timely file and serve a claim is that they were unaware that Brookdale Center for Healthy Aging was a department of the State over which the Court of Claims has exclusive jurisdiction. Such an excuse evinces ignorance of the law, which is not a reasonable excuse for failing to timely file and serve a claim (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; 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]).
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, movant contends that the State had notice and a sufficient opportunity to investigate the claim by virtue of the invoices it sent. Mr. D'Adamo states that AFP 107 sent invoices in the amount of $87,081.60 and respondent made two wire-transfer payments on June 15, 2020 totaling $73,225.78. Movant does not state, however, when the invoices were sent or the amount of the invoices, and copies of the documents were not submitted in support of the instant application. More recently, movant sent a letter dated January 11, 2021 requesting payment in the amount of $13,855.82. Inasmuch as a claim accrues under the Court of Claims Act when damages are reasonably ascertainable (Fairchild Corp. v State of New York, 169 AD3d 643 [2d Dept 2019], lv denied 33 NY3d 907 [2019]), in this case upon the conclusion of the respondent's room rentals on October 31, 2019, the Court would ordinarily conclude that movant failed to demonstrate the State had notice of the essential facts of the claim within the six-month period of limitations applicable to breach of contract claims (Court of Claims Act § 10 [4]). Here, however, the limitations period set forth in Court of Claims Act § 10 (4) was suspended by virtue of Executive Order 202.8 and subsequent Executive Orders (202.14, 202.28, 202.38, 202.48, 202.55, 202.60, 202.67) until November 3, 2020. As a result, the State was provided notice of the essential facts constituting the claim within the six-month limitations period, as tolled, applicable to contract claims. As the State does not dispute that it received notice of the claim in time to investigate the matter and also fails to assert that it will suffer prejudice, these factors weigh in movant's favor.
With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe that a valid cause of action exists (Matter of Martinez v State of New York, 62 AD3d 1225, 1227 [3d Dept 2009]; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Movant has met this low threshold. Movant has submitted both a copy of the contract as well as an affidavit from John D'Adamo, General Manager of Hilton Albany, who states that Brookdale Center for Healthy Aging, a department of Hunter College, failed to pay the balance owed on its bill. This provides reasonable cause to believe that a valid cause of action exists, which is all that is required.
As for the final factor to be considered, it does not appear that an alternative remedy is available.
Insofar as the majority of factors weigh in movant's favor, the Court will grant the instant application.
Based on the foregoing, movant's application for leave to serve and file a late claim is granted and movant is directed to file and serve its claim on the Office of the Attorney General and the City University of New York in accordance with Court of Claims Act § 11, § 11-a; Brinkley v City Univ. of N.Y. (92 AD2d 805 [1st Dept 1983]) and L.F. O'Connell Assoc. v State of New York (176 Misc 2d 697 [Ct Cl, 1998]) within forty-five days of the date this Decision and Order is filed.
April 26, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated March 24, 2021;
2. Affidavit of William D. Wallace, Esq. sworn to March 24, 2021, with exhibits;
3. Affirmation in opposition dated April 5, 2021;
4. Undated Reply Affirmation of William D. Wallace, Esq. filed April 12, 2021.