Edwards v. State

• Decision Date: 06 July 1978
• Citation: 407 N.Y.S.2d 804,95 Misc.2d 516
• Parties: John EDWARDS, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 804

407 N.Y.S.2d 804

95 Misc.2d 516

John EDWARDS, Claimant, v. The STATE of New York, Defendant.

Court of Claims.

July 6, 1978.

[95 Misc.2d 517] Robert D. MacLachlan, Jr., Brookhaven, for claimant.

Louis J. Lefkowitz, Atty. Gen., by Dace Epermanis, Asst. Atty. Gen., for the State.

OPINION

GERARD M. WEISBERG, Judge.

The State has moved to dismiss this claim for untimeliness. Claimant opposes the motion, but seeks permission to file a late claim in the event that the State's motion is granted.

The claim recites that on or about July 10, 1973, claimant's wife, Carole R. Edwards, now deceased, became an employee of the State University of New York at Stony Brook (Stony Brook). On or about that same date, Mrs. Edwards executed an application to become a member of the New York State Employees' Retirement System (System), designating claimant John Edwards as beneficiary. The application was completed under the direction of the Personnel Department at Stony Brook which accepted the application for filing with the Comptroller of the State of New York. The application was never forwarded to the Comptroller, and was mistakenly placed in Mrs. Edwards' personnel file. Subsequently, on December 15, 1974, she died. Application was then made by claimant for benefits under the System, which claim was rejected by the Comptroller on the grounds that Mrs. Edwards had never become a member. An administrative appeal was taken pursuant to which a hearing was held in December, 1975. On March 26, 1976, claimant received a copy of the final decision of the hearing examiner which upheld the Comptroller's determination.

On June 25, 1976, a notice of intention to file a claim against the State was filed with the Court of Claims in Albany, followed by filing of the claim on December 14, 1976. The claim alleges a single cause of action based upon Stony Brook's failure to file Mrs. Edwards' application.

The State has moved to dismiss on the authority of subdivision 3 of section 10 of the Court of Claims Act, which provides in substance that a claim or notice of intention to file a claim to recover damages for injury to property or for personal injury caused by the tort of a State officer or employee, must be filed within 90 days after the claim accrues. The State maintains that claimant's cause of action sounds in tort, and that the cause of action accrued when the wrong was committed on or about July 10, 1973, or at the latest when Carole Edwards died on December 15, 1974. Claimant argues that the cause of action accrued on March 26, 1976 when the decision of the hearing officer on claimant's administrative appeal was received.

If the gravamen of this claim is indeed tort, the claim is untimely. The latest accrual date urged by either of the parties is March 26, 1976. The notice of intention was filed 91 days thereafter on June 25, 1976. (Green v. State of New York, 28 A.D.2d 747, 280 N.Y.S.2d 823; Hard v. State of New York, 30 A.D.2d 631, 290 N.Y.S.2d 429.)

The threshold question is whether this is a claim Ex delicto or Ex contractu. Claimant's attorney argues that ". . . the claim sounds both in negligence and implied contract, since the failure to forward the claim was not only negligent, but a breach of SUNY's undertaking to do so as her new employer." (Affidavit in Opposition, p. 2.) Subdivision 4 of Section 10 of the Court of Claims Act provides that a claim for breach of contract, express or implied, must be filed within six months after accrual of the claim, unless the claimant files within such time, a written notice of intention, in which event the claim must be filed within two years after accrual.

For purposes of determining the applicable statute of limitations, it is the gravamen of the claim which governs, not the form in which it is pleaded. (Western Electric Company v. Brenner, 41 N.Y.2d 291, 392 N.Y.S.2d 409, 360 N.E.2d 1091; State of New York v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y.S.2d 654, 341 N.E.2d 223.) Where the same transaction gives rise to two causes of action having different statutes of limitations, one may be timely although the other is barred. (Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529, affd. 254 N.Y. 620, 173 N.E. 892.) In cases involving personal injury or injury to property, the tort statute of limitations is frequently "If the contractual obligations here add nothing to defendant's ordinary common-law duty of due care, then the three-year statute will govern; if a greater duty is imposed as a result of the contract, then, the six-year statute will be applied, even though the breach of that duty may rest upon a tortious act. (Blessington v. McCrory Stores Corp., 305 N.Y. 140, 147-148, 111 N.E.2d 421 (1953).)"

applied even though plaintiff can plead and prove a cause of action in contract. (Klein v. Parke-Bernet Galleries, Inc., 21 A.D.2d 772, 250 N.Y.S.2d 656; Grossman v. Janette H. Corp., 18 A.D.2d 982, 238 N.Y.S.2d 660, affd. 14 N.Y.2d 852, 251 N.Y.S.2d 966, 200 N.E.2d 632.) However, as Justice CARDAMONE stated in D'Amico v. D. W. Winkelman Co., Inc., 51 Misc.2d 205, 208, 272 N.Y.S.2d 894, 897:

Whether a given set of facts gives rise to a breach of a contractual as opposed to a tort duty, is a matter of substantive law. The distinction is frequently a difficult one to make. (See Busch v. Interborough R. T. Company, 187 N.Y. 388, 391, 80 N.E. 197, 198.) This claim states:

"By reason of the negligence of the State University of New York at Stony Brook in failing to file the aforementioned application of CAROLE R. EDWARDS with the Comptroller of the State of New York, as it had undertaken to do as her employer, claimant has been deprived of benefits which he would have been entitled from the New York State Employees REtirement (sic) System, in the sum of Six Thousand Six Hundred Thirty-eight ($6,638.00) Dollars."

We believe that the foregoing allegation permits of analysis under both contract and tort theories. The characterization of Stony Brook's failure to file the decedent's application as negligence is quite natural. This does not indicate conclusively however that the gravamen of this claim is tort. In Ryan Ready Mixed Concrete Corp. v. Coons, 25 A.D.2d 530, 267 N.Y.S.2d 627, the defendant, an insurance broker, undertook to obtain certain insurance for the plaintiff and failed to do so. The Court said at page 530, 267 N.Y.S.2d at page 629:

"We believe that the allegations in each cause of action are sufficient to classify the action as sounding in contract in spite of the frequent references to negligence of defendants. (Robins v. Finestone, 308 N.Y. 543, 547, 127 N.E.2d 330, 332.)"

The Ryan case is closely analogous to the case at bar, since it is alleged that Stony Brook undertook, As Mrs. Edwards' employer, to process her application. We have little difficulty in finding a sufficient allegation of an implied promise supported by a valuable consideration, to wit: Mrs. Edwards' services. (Cf. Thorne v. Deas, 4 Johns 84.) The duty allegedly breached here was not merely to exercise due care, but to perform a specific act, the nonperformance of which constituted a breach of contract.

We find additionally however that the allegations of the claim fairly support a tort theory of liability. Having accepted Mrs. Edwards' application, and thereby begun performance of an act, the defendant was duty-bound to exercise reasonable care. In view of Mrs. Edwards' designation of claimant as her beneficiary, it was foreseeable that he might suffer injury if Stony Brook acted negligently. The duty to exercise reasonable care therefore extended to him as well. Further, as Dean Prosser has stated:

". . . there are situations in which the making of (a) contract creates a relation between the defendant and the promisee, which is sufficient to impose a tort duty of reasonable care . . . the making of a contract with A may create a relation between the defendant and B, which will create a similar duty toward B, and may result in liability for failure to act." (Prosser, Law of Torts (4th ed.), p. 623.) ¹

Thus, the existence of a contractual duty owed to Mrs. Edwards may have given rise to a tort duty owed to claimant, her intended beneficiary.

The interrelationship of the tort and contract theories in this case is extremely close so close in fact, that to hold that the gravamen of the claim was one or the other would be essentially arbitrary. Consequently, although pleaded as one cause of action, we construe the claim to contain two separate causes of action, and will proceed as if they had been separately stated.

From this perspective, it can be seen that the contract claim was timely filed. The general rule is that a cause of action in contract accrues when the contract is breached, or when the promisor omits performance of an obligation. (Edlux Construction Corp. v. State of New York, 252 App.Div. 373, 300 N.Y.S. 509, affd. 277 N.Y. 635, 14 N.E.2d 197.) Where State contracts are concerned however, ". . . (t)he expression 'claim accrued' is not identical with the expression 'cause of action accrued' ". (Dufel v. State of New York, 198 App.Div. 97, 102, 189 N.Y.S. 759, 762.) The claim accrues when damages are ascertainable (Taylor v. State of New York, 302 N.Y. 177, 96 N.E.2d 765; Terrace Hotel Co. v. State of New York, 19 A.D.2d 434, 243 N.Y.S.2d 989), or when claimant possesses the legal right to enforce its claim in court. (City of New York v. State of New York, 40 N.Y.2d 659, 389 N.Y.S.2d 332, 357 N.E.2d 988.) When such a legal right is dependent upon a decision by a State official such as the Comptroller, the claim accrues when notice of that determination is received. As Judge FUCHSBERG stated in City of New York v. State of New York, supra, p. 668, 389 N.Y.S.2d p. 339, 357 N.E.2d p. 994:

". . . where, by contract or by statute, the State's obligation to pay is conditioned upon an audit, no suit can be brought by a claimant until the official charged with making the audit...