Opinion
# 2014-041-067 Claim No. 124532 Motion No. M-85403
11-19-2014
ROBERT BERGER and KAREN BERGER v. THE STATE OF NEW YORK
NOLAN & HELLER, LLP By: Carl G. Dworkin, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim is granted where Court of Claims lacks subject matter jurisdiction over challenge to administrative acts and/or omissions of state agency and where claimants' CPLR Article 14 contribution and/or indemnification cause of action alleging that defendant owes a duty to repair and maintain dam owned by claimants fails to state a cause of action.
Case information
| UID: | 2014-041-067 |
| Claimant(s): | ROBERT BERGER and KAREN BERGER |
| Claimant short name: | BERGER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124532 |
| Motion number(s): | M-85403 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | NOLAN & HELLER, LLP By: Carl G. Dworkin, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 19, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim on the ground that the Court lacks subject matter jurisdiction over this claim arising from an administrative Decision and Order (DEC Order) of the New York State Department of Environmental Conservation (DEC). The DEC Order, issued on June 17, 2013, resulted from a proceeding brought pursuant to Environmental Conservation Law (ECL) 15-0507 and determined that claimants are owners of the Honk Falls Dam (Dam), penalized claimants for not fulfilling certain statutory obligations of dam owners and ordered claimants to undertake certain remedial actions with respect to the Dam.
Claimants have challenged the DEC Order in an Article 78 proceeding.
The claim identifies the date the DEC Order was issued, June 17, 2013, as the claim's accrual date. The claim alleges that because DEC issued certain regulations in 1980 (6 NYCRR 672-2), requiring the City of New York to continually "release a certain volume of water from Rondout Reservoir . . . to reestablish Honk Lake as a permanent waterbody for recreational use by the general public," defendant State of New York is "the user of the Honk Falls Dam as both creator of the resource of Honk Lake and user of that resource and . . . has acquired a property interest or property rights in Honk Falls Dam." The claim asserts that as "the user of Honk Lake and, therefore, the Honk Falls Dam" and, "given its property interest or rights in Honk Falls Dam, the State of New York was and is obligated for the maintenance and repair of that Dam under various statutory and common law requirements of New York Law, including Environmental Conservation Law §15-0507, but has failed to perform those obligations."
The claim further alleges that the "State is duly indebted to Claimants" for the past and future costs of compliance with the DEC Order and, "is duly liable for any downstream damage in the event of failure of the Honk Falls Dam and must indemnify and hold harmless Claimants in the event of any injury to persons or property downstream so long as water is impounded by Honk Falls Dam placed there at DEC's direction."
Defendant argues that the Court lacks subject matter jurisdiction over the claim because it seeks to review "actions or inactions of a state agency" and that subject matter jurisdiction of such a claim lies only in Supreme Court in the context of a CPLR Article 78 proceeding.
The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to review action or inaction by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).
In City of New York v State of New York (46 AD3d 1168, 1169-1170 [3d Dept 2007], lv denied 10 NY3d 705 [2008]), the court explains that:
"Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has 'no jurisdiction to grant strictly equitable relief' (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]), 'the threshold question is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim"' (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination--which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991])."
In order to award claimants damages in this action, the Court would necessarily be required to review the administrative determination of the DEC which, as set forth above, it lacks jurisdiction to do (see Chevron U.S.A., Inc. v State of New York, 86 AD3d 820 [3d Dept 2011]).
The claim clearly and directly challenges the administrative acts and/or omissions of the Department of Environmental Conservation (DEC), and "[r]eview of the administrative determination is available in a CPLR article 78 proceeding" (Chevron, 86 AD3d at 821)
To the extent the claim seeks a declaratory judgment as to defendant's liability for future damages which claimants may face with respect to deficiencies in the Dam leading to "risk of injury to persons and property downstream in the event of failure of the Honk Falls Dam," the defendant correctly points out that the Court lacks jurisdiction to issue such a judgment (see Court of Claims Act 9-a; State of New York v Fehlhaber Corp. & Horn Constr. Co., 69 AD2d 362, 374 [3d Dept 1979]).
Additionally, the Court lacks subject matter jurisdiction because the claim fails to comply with Court of Claims Act 11 (b) in that it fails to allege facts sufficient to state a cause of action.
The claim alleges that defendant "is obligated for the maintenance and repair of the Dam under various statutory and common law requirements of New York Law, including Environmental Conservation Law §15-0507."
Claimants, in their response papers, have abandoned their contention that defendant is liable for repair and maintenance of the dam pursuant to ECL 15-0507 because defendant has correctly pointed out that defendant is neither an "owner" nor a "person" as defined in ECL 15-0107 and 15-0507. Defendant further correctly asserts that only the Attorney General is authorized to bring an action to enforce ECL 15-0507 (Nowak v Madura, 304 AD2d 733 [2d Dept 2003]; Alaimo v Town of Fort Ann, 63 AD3d 1481, 1484 [3d Dept 2009]).
Claimants argue that they neither challenge the DEC Order nor rely upon ECL 15-0507 but insist, instead, that the claim alleges a cause of action for contribution/indemnification pursuant to CPLR Article 14 based upon defendant's "common law liability . . . for dams."
Contribution and indemnification causes of action, respectively, each require that the pleading state an identifiable equitable or legal relationship or duty running from the proposed contributor/indemnitor to either the party seeking contribution/indemnity or to an injured party seeking damages from the contributee/indemnitee (First Bible Baptist Church v Gates-Chili Cent. School Dist., 172 AD2d 1057, 1058 [4 Dept 1991]: "A defendant may seek contribution from a third party based upon the breach of some duty owed by that party either to the plaintiff or to the defendant"; Guerra v St. Catherine of Sienna, 79 AD3d 808, 809 [2d Dept 2010]: "To sustain a third-party cause of action for contribution, a third-party plaintiff is required to show that the third-party defendant owed it a duty of reasonable care independent of its contractual obligations, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries").
The court has carefully reviewed the allegations of the claim. The claim does not allege facts tending to show that there exists an express or implied contractual relationship or duty to support a cause of action for contribution and/or indemnification against defendant.
There is no allegation of a warranty or strict liability basis for contribution and/or indemnification in the claim.
Claimants do not allege that the defendant is an owner of the Dam through deed or pursuant to the statute (ECL 15-0507). To the contrary, the DEC Order (which claimants insist they are not challenging in this action) finds that claimants are the owners of the Dam.
Claimants' cause of action ostensibly rests upon breach of a negligence-based duty owed to either the claimants or to a foreseeable third-party seeking damages from the claimants (see Lang v Warner, 121 AD2d 514 [2d Dept 1986], appeal denied 69 NY2d 601 [1986], in which a third-party complaint which failed to allege any duty that would support a contribution claim is dismissed for failure to state a cause of action).
The only allegation in the claim asserting a legal or equitable basis purportedly supporting contribution and/or indemnification from the State of New York in repairing and maintaining claimant's Dam is the issuance of certain regulations (6 NYCCR 672-2) by DEC in 1980.
Significantly, in the Affirmation in Opposition to Motion to Dismiss submitted by their attorney, claimants reiterate that the legal and/or equitable basis for their claim against defendant is the issuance of certain regulations (6 NYCRR 672-2) by the DEC:
"Claimants believe that 100% of the liability for the Dam should properly be apportioned to the State. Honk Lake doesn't exist but for 6 NYCRR Part 672-2, which mandates that the City of New York release water from the Merriman Dam, which fills Honk Lake. If there were no water in Honk Lake - the natural condition- Honk Falls Dam would pose no danger and would not require remedial action because there would be no impounded water the release of which would threaten persons and properties downstream."
The promulgation and enforcement of regulations by a state agency is a discretionary governmental function for which the state owes no duty of care to any particular person or entity. This fundamental principle is illustrated in Marino v State of New York (16 AD3d 386, 387 [2d Dept 2005]), in which the court affirmed the Court of Claims dismissal of a claim in which claimant alleged that defendant caused claimant's injuries by failing to enforce regulations regarding frisbee tossing on a public beach:
"By promulgating and enforcing these regulations, intended for the protection of the general public, the defendant did not assume a special relationship toward the claimant."
In Sweet v State of New York (114 Misc 2d 269, 274-276 [Ct Cl 1982]), the court dismissed a flood damage claim for failing to state a cause of action, finding that the State of New York was immune from liability to claimants for granting permission to breach a privately owned dam to relieve pressure on the dam which caused damage to claimant's property because the state's actions were "purely governmental in nature" (Sweet, 114 Misc 2d at 274). The court noted that the "Water Resources Law" (ECL Article 15) is intended to benefit the general public and DEC "cannot be cast in damages for any failure to comply with the provisions of said law . . . Rather, to establish a viable cause of action, it must be shown that the department assumed a special affirmative duty toward claimants and that said duty was performed in a negligent manner" (Sweet, 114 Misc 2d at 275).
The claim fails to adequately allege a legal duty of care running from defendant to either claimant or to a person who would potentially sue claimants for failure of the Dam. The claim thus fails to state a cause of action and the Court may, in a proper case, dismiss such a claim sua sponte (Kingston Oil Supply Corp. v Smith, 101 AD3d 1569, 1571 [3d Dept 2012]: "While such a dismissal is rarely permitted due to the potential for prejudice to the plaintiff, no prejudice was suffered by plaintiff here. Specifically, a sufficient record was developed at the pretrial conference demonstrating that there was no dispute as to the underlying facts. Inasmuch as only a legal question was presented and plaintiff's theory of unjust enrichment was meritless, for the reasons already set forth herein, it was not improper for Supreme Court to dismiss the complaint in the absence of a formal motion for such relief"; see Wehringer v Brannigan, 232 AD2d 206, 207 [1 Dept 1996], appeal dismissed 89 NY2d 980 [1997]).
Finally, beyond all of the foregoing, the claim fails to satisfy Court of Claims Act 11 (b) in that it fails to allege facts stating a cognizable cause of action and the Court thus lacks subject matter jurisdiction over the claim (see DeHart v State of New York, 92 Misc 2d 631, 634 [Ct Cl 1977]: "Although the precise wording of section 11 does not appear to require that a claim state a valid cause of action, the cases are clear that without such a statement a claim is legally deficient and subject to fatal attack, Patterson v State of New York, 54 AD2d 147; Davis v State of New York, 28 AD2d 609; Weinstein v New York State Thruway Auth., 27 Misc 2d 503")
As set forth above, the claim attempts, in the inappropriate forum, to overturn, contest and/or circumvent the findings and conclusions of the DEC Order, additionally fails to state a cause of action and further fails to allege facts sufficient to satisfy Court of Claims Act 11 (b).
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
November 19, 2014
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Dismiss, filed July 23, 2014;
2. Affirmation of Anthony Rotondi, dated July 23, 2014, and annexed exhibits;
3. Affirmation in Opposition of Carl G. Dworkin, dated August 7, 2014;
4. Affirmation in Further Support Motion to Dismiss of Anthony Rotondi, dated August 20, 2014;
5. Sur-Reply Affirmation in Opposition of Carl G. Dworkin, dated August 26, 2014, and annexed exhibits.