Opinion
# 2011-032-033 Claim No. 109722 Motion No. M-80256 Cross-Motion No. CM-80310
11-30-2011
LASSITER PROPERTIES v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2011-032-033 Claimant(s): LASSITER PROPERTIES, INC. Claimant short name: LASSITER PROPERTIES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 109722 Motion number(s): M-80256 Cross-motion number(s): CM-80310 Judge: JUDITH A. HARD Poklemba & Hobbs, LLC Claimant's attorney: By: Gary C. Hobbs Hon. Eric T. Schneiderman, NYS Attorney General, Defendant's attorney: By: Michael A. Sims, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: November 30, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The underlying claim arises out of a dispute between the parties regarding claimant's alleged timbering rights on lands acquired by defendant. Specifically, claimant alleges that since October 27, 2000, defendant has opposed claimant's effort to harvest timber from certain lots in Township 8, in the Town of Colton, St. Lawrence County, and that said opposition has resulted in damages in the sum of $668,783.00, as of the filing of the claim on August 12, 2004 (Claim, ¶¶ 23, 24). By Decision and Order dated March 15, 2010, Judge Siegel granted partial summary judgment to defendant. Said Decision and Order, which was affirmed on appeal (see Lassiter Properties, Inc., v State of New York, 84 AD3d 1559 [3d Dept 2011]), left one issue undecided - whether defendant breached a contract with claimant concerning the harvesting of timber rights. Defendant now moves this Court for a further order of summary judgment dismissing the claim.
In support of its motion, defendant alleges that the breach of contract claim lacks merit as a matter of law, because claimant failed to obtain written approval from the Comptroller as required under State Finance Law § 112; the alleged contract does not meet GOL§ 5-703 (Statute of Frauds); and there are no material triable issues of fact. Claimant opposes the motion arguing that the motion is untimely; successive motions for summary judgment are prohibited; the Comptroller approved claimant's contract; and if the Court does not find that the Comptroller approved the contract, claimant may recover on theories of estoppel, quasi-contract and implied contract in law.
In addition, claimant cross-moves for an Order pursuant to CPLR §3126 striking defendant's answer; an award of attorney's fees and costs pursuant to 22 NYCRR 130-1.1; and, in the alternative, a determination pursuant to CPLR § 3123 that the matters in claimant's Notice to Admit, served upon defendant on May 12, 2010, be deemed admitted upon the ground that defendant has intentionally engaged in deceptive discovery practices, together with such other and further relief as may be just. Defendant opposes the cross-motion stating that it is without merit.
For the reasons stated below, all motions are denied and the trial of this matter previously scheduled for January 25- February 3, 2012, shall proceed.
I. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
A. Timeliness
Two Notes of Issue were filed in this claim. The first was filed on May 15, 2008. Thereafter, defendant moved this Court for an order granting summary judgment. This Court (Siegel, J.), granted partial summary judgment to defendant on all issues except whether numerous writings and memoranda between the parties created a new agreement as to the timber rights, stating that a question of fact existed as to said issue (see Lassiter Properties, Inc. v State of New York, Claim No. 109722, UID #2010-042-500, March 15, 2010, affd 84 AD3d 1559 [3d Dept 2011]). While said decision was on appeal, claimant was directed, during a calendar call with the Court, to file a Note of Issue indicating that it was ready for a trial on the remaining issue. Claimant filed said Note of Issue on April 8, 2011. Thereafter, during a telephone conference, defendant advised the Court and claimant, that it intended on filing a motion for summary judgment on the remaining issue. Defendant filed said motion on August 3, 2011. At no time during said conference or prior to the filing of the subject motion, did claimant raise any concerns about the timeliness of said motion. Nevertheless, claimant now argues that defendant's motion is untimely because the first Note of Issue was filed on May 15, 2008 and counsel for claimant's filing of the second Note of Issue was done in error. The Court disagrees.
CPLR 3212 provides that unless the court sets a date after which no motions for summary judgment shall be made, such motions shall be made no later than one hundred twenty days after the filing of the Note of Issue. In this case, claimant filed its second note of issue, at the direction of the Court, on April 8, 2011. The Court did not direct a certain date by which the parties were to file any further motions for summary judgment. Moreover, claimant did not raise an objection during the telephone conference in which defendant advised of its intent to make said motion. Accordingly, the Court determines that defendant's filing of the subject motion on August 3, 2011, is timely.
B. Successive Motions for Summary Judgment
Successive motions for summary judgment are generally disfavored by the Courts (see (Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]). However, they may be permitted where there is "newly discovered evidence or other sufficient cause" (Id.). They should not be permitted if based upon facts which could have been set forth from the outset (see Wenger v Goodall, 288 AD2d 815 [3d Dept 2001], lv denied 98 NY2d 605 [2002]). In the present claim, no evidence has been raised which is new or could not have been ascertained at the time the first summary judgment motion was brought, and defendant has failed to submit other sufficient cause for bringing the successive motion. Accordingly, despite the timeliness of defendant's motion for summary judgment, it must be denied. Even if the Court were to address the motion on the merits, it would nonetheless be denied since material issues of fact exist.
C. Merit
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247 [1980]).
The proponent of a motion for summary judgment must make a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Material" has been defined as "substantial; of consequence; important; going to the essence or the merits; relating to matter of substance, rather than form" (Wanger v Zeh, 45 Misc 2d 93, 96 [Sup Ct, Albany County 1965], citing Ballentine Dictionary, affd 26 AD2d 729 [3d Dept 1966]). A moving party's failure to demonstrate that there are no material issues of fact requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party's papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 320 [1986]). However, once a moving party has demonstrated that there are no such material issues of fact, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), supra; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1986], supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).
At the outset, to the extent that defendant raises a Statute of Frauds argument again, Judge Siegel's decision is the law of this case: GOL § 5-703 applies to the alleged contract and claimant must prove that the numerous writings and memoranda have complied with this statute. This may be done through multiple documents (Marks v Cowdin, 226 NY 138, 145 [1919];
DeRosis v Kaufman, 219 AD2d 376, 379 [1st Dept 1996]). Further, as noted by Judge Siegel, Bayles v Strong (104 App Div 153, 156 [2d Dept 1905]) states that " '[t]he requirement is not that this contract, valid at common law, should be reduced to a writing, but that "the contract or some note or memorandum thereof expressing the consideration," shall be in writing...It simply requires that certain agreements must be proved by a writing.' " An agreement may be pieced together by separate writings but they must be "connected with one another either expressly or by the internal evidence of subject matter and occasion" (DeRosis v Kaufman, 219 AD2d 376, 379 [1st Dept 1996], supra quoting Marks v Cowdin, 226 NY 138 [1919]).
As to the rest of the motion, defendant has failed to establish that there are no material issues of fact. For example, defendant has failed to establish that a contract was not formed through multiple writings and memoranda between the parties, including, among a multitude of other documents, the Land Purchase Agreements of February 6, 1989 and May 8, 1989.
The Court cannot ascertain from the papers submitted whether transactions between claimant and The Nature Conservancy were negotiated as part of the deal culminating in the land transfer to defendant. Defendant alleges that the Land Purchase Agreements of 1989 which were approved by the Comptroller did not approve any contract involving timber rights on the subject lots. Claimant argues that the approval of the Land Purchase Agreements was given knowing that additional documents regarding possession would be forthcoming and that the documents subsequently provided, which addressed the reservation of timber rights, were included in said approval. The term "timbering rights" is found throughout the multitudinous documents submitted in support and in opposition to the summary judgment motion. However, it is unclear without testimony, which timbering rights remained with claimant, if any, after the final transfer to defendant (Hobbs Affirmation in Opposition to Motion for Summary Judgment/Exhibits I, J, R; Sims Affirmation in Reply to Motion for Summary Judgment/Exhibit A). Testimony is necessary to identify the specific timbering rights being referred to in each document in order for this Court to determine whether the subject rights were reserved. Moreover, as set forth in claimant's Reply Affirmation, there are clearly issues of fact regarding whether the actions or representations of defendant's employees were in fact "mistaken" such that defendant may not be bound by them.
Moreover, defendant offers the affidavit of Keith Matheson, Superintendent of Real Property within the Division of Lands and Forests of the New York State Department of Environmental Conservation (DEC) for the premise that no contracts or instrument creating or granting timber rights for timber harvesting on the lots in question between claimant and defendant was ever submitted to the Comptroller through the DEC Bureau of Real Property and that no contract or instrument was ever approved by the Comptroller (Sims Affirmation in Support of Motion for Summary Judgment, Exhibit G, ¶ 24). However, this affidavit does not cover the possibility that a contract or other instrument originated elsewhere in the agency, for example the Counsel's office or in the Executive Office of that agency.
Based on the foregoing, summary judgment is denied and the trial shall proceed as scheduled.
II. CLAIMANT'S CROSS-MOTION
In its cross-motion, claimant seeks an order striking the answer of defendant and an award of attorney's fees and costs, or in the alternative, a determination pursuant to CPLR 3123 that the matters set forth in claimant's first notice to admit are deemed admitted. Claimant argues that it is entitled to such relief because defendant has intentionally engaged in deceptive discovery procedures; intentionally provided claimant's counsel with untrue, inaccurate and/or incomplete business records of the State; failed and/or refused to provide claimant with true, accurate and complete copies of the State's business records concerning this action; allowed claimant to conduct multiple depositions, at considerable time, cost and expense with exhibits and documents provided by the State which the State now asserts are not true, complete or accurate; and willfully disobeyed a directive of this Court to further respond and to supplement its response to claimant's Notice to Admit, dated May 12, 2010, propounded to the defendant pursuant to CPLR §3123.
In opposition, defendant argues that claimant has abused the provisions of CPLR 3123 and the Notice to Admit device to harass, cause unnecessary expense to the State, to repeatedly seek admissions of fact that he must have known, from the pleadings, papers, motion, and decisions in this claim are in dispute, and to seek admissions of matters that, by statute, are questions of law.
A court is authorized to strike the pleadings of a party who "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed" (Nicolia Ready Mix, Inc. v Fernandes, 37 AD3d 568 [2d Dept 2007]). However, the striking of pleadings is a drastic remedy which is appropriate only where the moving party conclusively demonstrates that the non-disclosure was "willful, contumacious or due to bad faith" (McGilvery v New York City Tr. Auth., 213 AD2d 322, 324 [1st Dept 1995]). Willful and contumacious behavior can be inferred by continuing noncompliance with court orders, in the absence of adequate excuses (see Nunez v City of New York, 37 AD3d 434 (2d Dept 2007]).
The purpose of a notice to admit is to eliminate issues in litigation that will not be in dispute at trial (DeSilva v Rosenberg, 236 AD2d 508 [2d Dept 1997]). It is not intended to cover ultimate conclusions, which can be made only after a full and complete trial (Id.). "A notice to admit which goes to the heart of the matters at issue is improper" (Id. at 508). Whether or not the defendant's denial of items is unreasonable is not subject to determination by the Court at this time. Pursuant to the provisions of CPLR 3123 [c], any such determination can only be made "at or immediately following the trial" and regardless of the outcome of the trial. To the extent defendant has neither admitted or denied certain items, the same holds true (see Acosta v State of New York, Claim 86740, Motion No. M-62742, Nadel, J., UID #2001-014-504 [Ct Cl, January 19, 2001]).
The Court of Claims can award attorney's fees for a party's refusal to comply with an order for disclosure or for the wilful failure to disclose information which the court determines should have been disclosed (see Court of Claims Act § 27, CPLR § 3126). The nature and degree of a penalty to be imposed is within the trial court's discretion (see Cavanaugh v Russell Sage Coll., 4 AD3d 660 [3d Dept 2004]). However, it would be an improvident exercise of discretion to grant such relief absent a clear showing that the refusal or failure to comply is willful and contumacious (Id.).
In the present claim, claimant served defendant with a Notice to Admit 385 items on or about May 12, 2010. On or about June 24, 2010, defendant served claimant with a Statement in Reply to Notice to Admit, in which defendant admitted 187 items, admitted with explanation 14 items, denied 183 items, and refused to admit or deny 4 items.Defendant argues that at least 88 of the denials were because claimant requested admissions with respect to facts that go to the very essence of the dispute or issues of law that must be determined by the Court. Defendant further argues that claimant's request that defendant stipulate to 59 items as business records, should be a determination made by the Court pursuant to CPLR § 4518 (a). On June 1, 2011, claimant requested that defendant reconsider its responses to many of the items in claimant's Notice to Admit. On or about September 12, 2011, defendant served claimant with a Supplemental Statement in Reply to Notice to Admit. In said Supplemental Statement, defendant refined its earlier responses and either admitted items which it previously had denied, or offered a more detailed explanation as to why it was unable to do. The Court has reviewed defendant's responses and finds no indication that the failure of defendant to admit the items in claimant's Notice to Admit was "willful, contumacious or due to bad faith." To the contrary, defendant responded to each and every item in claimant's prolific Notice to Admit and when asked for reconsideration of its responses, admitted additional items (albeit with qualification), including that many of the documents provided during discovery were true and accurate copies of originals. In addition, defendant provided detailed explanations with regard to those items which it felt it could not admit.
Some items contain both an admission and a denial.
Based upon the foregoing, claimant's cross motion is denied. The Court will not strike defendant's answer, nor will it award attorney's fees and costs pursuant to CPLR 3126 or deem the items in claimant's Notice to Admit admitted. However, to the extent items have not been admitted, claimant may renew his application for the relief requested herein at or immediately following the trial. Moreover, if the parties require additional days of trial in order to call witnesses to testify as to the matters defendant has not admitted, the Court will extend the trial to accommodate the same, upon request.
November 30, 2011
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion for Summary Judgment, dated August 3, 2011, Affirmation of Michael A. Sims, AAG, Supporting Motion for Summary Judgment, dated August 3, 2011, with Exhibits A-H.
2. Reply Affirmation of Gary C. Hobbs, Esq., dated August 24, 2011, with Exhibits A-I, Affidavit in Opposition of William L. Liscinski, sworn to September 16, 2009, and Memorandum of Law, dated August 24, 2011.
3. Notice of Cross-Motion, dated August 25, 2011, Affidavit of Gary C. Hobbs, Esq., in Support of Cross-Motion, sworn to August 25, 2011, with Exhibits A-J.
4. Defendant's Affirmation in Reply on Motion for Summary Judgment and in Opposition to Claimant's Notice of Cross-Motion for Sanctions, Penalties, Attorney Fees and Costs, dated September 13, 2011, with Exhibits A-F.
5. Correspondence from Michael A. Sims, AAG, dated September 15, 2011.
6. Reply Affirmation of Gary C. Hobbs, Esq., dated September 22, 2011, with Exhibit A.
7. Reply Affirmation of Gary C. Hobbs, Esq., dated October 19, 2011, with Highlighted Exhibits B-F.
Papers Filed: Claim, filed August 12, 2004; Verified Answer, filed November 1, 2006; Note of Issue, filed May 15, 2008; Order, filed May 26, 2009; Decision and Order, filed March 18, 2010 (Siegel, J.); Note of Issue, filed April 8, 2011.