H. Sysol Const. Co., Inc. v. State

• Decision Date: 01 December 1977
• Parties: H. SYSOL CONSTRUCTION CO., INC., Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 1006

399 N.Y.S.2d 1006

92 Misc.2d 238

H. SYSOL CONSTRUCTION CO., INC., Claimant, v. The STATE of New York, Defendant.

Court of Claims of New York.

Dec. 1, 1977.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo by James W. Kirkpatrick, Buffalo, of counsel, for the claimant.

Louis J. Lefkowitz, Atty. Gen. by Donald P. Zisquit and Lucian C. Parlato, Asst. Attys. Gen., of counsel, for the State.

MEMORANDUM-DECISION AND ORDER

JEREMIAH J. MORIARTY, Judge.

The State moves for dismissal of the above-referenced claim for failure to timely file. Claimant cross-moves for permission to file a late claim. The well documented facts as they appear from the supporting affidavits and exhibits are as follows.

On February 26, 1975, claimant purchased, by a bid at a public auction, certain premises owned by the State of New York. The date of delivery of the letters patent was scheduled to be July 7, 1975. During the interim between the date of purchase and the conveyance, claimant had neither title to, nor possession of, the premises.

During that time and on March 15, 1975, certain acts of vandalism occurred and damage was done to the premises. Charles F. Flanagan, Bureau Chief, Office of General Services, acknowledged claimant's notification of the vandalism and consequent damage by letter to claimant of March 27, 1975. By letter dated June 18, 1975, Richard J. Higgins, Executive Deputy Commissioner of the Office of General Services advised claimant that, despite the vandalism, the State was precluded from reducing the sale price of the property after public sale in which other bidders participated. He noted that the information, with regard to the vandalism, was being investigated and that any claim of vandalism or other damage to the premises would be treated as a separate matter.

Mr. Higgins, by letter dated July 3, 1975, just four days prior to the scheduled transfer of title, specifically acknowledged State responsibility for the damage which resulted from the vandalism of March 15 ". . . in so far as it is ascertainable." Title was transferred on July 7, 1975 and negotiations for the settlement of the damage claims continued.

To that end, claimant submitted various estimates of damage and the parties appeared to agree upon a figure of $20,000 at a meeting on January 6, 1977 at the office of Charles F. Flanagan, Bureau Chief. Then, by letter dated March 4, 1977, Mr. Flanagan informed claimant's attorney that:

"Apparently the Attorney General has recently adopted the policy of not entering into settlements on the basis of an informal claim and an agency recommendation. I have also been told that the Attorney General does not welcome any independent agency involvement with a claimant or potential claim.

Therefore, I can only advise you to commence an action in the Court of Claims and in due course, we will input to the Attorney General our opinion on the claim."

Claimant filed its claim on May 26, 1977 and the State filed its motion to dismiss on July 5, 1977. Claimant thereafter filed its cross-motion to file a late claim on July 8, 1977.

The rights and liabilities of a buyer and seller of real property with regard to risk of loss between the time of contract and conveyance are fixed by the Uniform Vendor and Purchaser Risk Act, General Obligations Law, Section 5-1311. It provides in relevant part:

"1. Any contract for the purchase and sale or exchange of realty shall be interpreted, unless the contract expressly provides otherwise, as including an agreement that the parties shall have the following rights and duties;

a. When neither the legal title nor the possession of the subject matter of the contract has been transferred to the purchaser: . . . (2) if an immaterial part thereof is destroyed without fault of the purchaser or is taken by eminent domain, neither the vendor nor the purchaser is thereby deprived of the right to enforce the contract; but there shall be, to the extent of the destruction or taking, an abatement of the purchase price."

The rules which govern risk of loss between buyer and seller have been held applicable to judicial sales of property (New York Medical College v. 15-21 East 111th Street Corp., Sup., 90 N.Y.S.2d 591 (not officially reported); Geist v. State, 3 Misc.2d 714, 156 N.Y.S.2d 183) and there appears to be no exception which would exempt the State, as the seller of real property, from the effects of those rules. Thus, the State had a legal obligation to abate the purchase price at the date of the conveyance and, in fact, the State acknowledged that legal responsibility through the aforementioned letter of Richard J. Higgins, Executive Deputy Commissioner of the Office of General Services, dated July 3, 1975.

It is the opinion of this Court that the State's motion to dismiss ought to be denied based upon notions of fairness and equitable estoppel. We are here faced with one of those rare and exceptional cases where application of the...