Latham Enterprises, Inc. v. State

• Decision Date: 19 February 1960
• Docket Number: No. 37097,37097
• Citation: 20 Misc.2d 1018,197 N.Y.S.2d 217
• Parties: LATHAM ENTERPRISES, INC., Claimant, v. STATE of New York. Claim
• Court: New York Court of Claims

Page 217

197 N.Y.S.2d 217

20 Misc.2d 1018

LATHAM ENTERPRISES, INC., Claimant, v. STATE of New York.

Claim No. 37097.

Court of Claims of New York.

Feb. 19, 1960.

Javits, Moore & Trubin, New York City, for claimant, by John Trubin, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., by Frederick Kaye, Asst. Atty. Gen., of counsel, for the State.

ALEXANDER DEL GIORNO, Justice.

This is a motion for an order permitting claimant to file its claim, pursuant to Section 10, subdivision 5 of the Court of Claims Act.

By notice of cross motion the State moves for an order 1) vacating and dismissing the claim, pursuant to Sections 10 and 11 of the Court of Claims Act, upon the ground that the Court does not have jurisdiction of the subject of the action; 2) denying claimant's motion, pursuant to Sections 10 and 11 of the Court of Claims Act and Rules 9 and 19 of the Rules of the Court of Claims, upon the grounds that claimant has failed to set forth a reasonable excuse for such late filing and that the State is prejudiced thereby; and upon the additional grounds that the claim does not state facts sufficient to constitute a cause of action and is not in conformity with the statutes and rules of the Court of Claims.

On July 8, 1959, claimant filed a notice of intention to file a claim for property damage caused by the continuing torts of the State, commencing on or about October 27, 1957 and continuing to the date of the filing of the said notice, in connection with the construction or reconstruction of the Loudon Road, Part 2, State Highway No. 119, and known or designated as Route 9, and also of Troy-Schenectady Road, Parts 3 and 4, State Highways 119, 604, and 630, 'and particularly in planning and performing the construction and reconstruction in a negligent manner and in failing to plan and perform the construction and reconstruction in a safe, proper, reasonable and workmanlike manner and in creating and maintaining nuisances, interfering with claimant's lawful enjoyment and use of its property.' Although the construction or reconstruction resulted in the taking of property pursuant to Section 30 of the Highway Law, claimant's damage in said notice of intention was as to property not taken. The notice of intention did not set forth the amount of damages claimed.

On October 6, 1959, a claim was filed, alleging substantially the contents of the notice of intention, except that the claim alleged that the acts complained of commenced on or about October 17, 1957. In addition, the claim alleges that the claimant was damaged in that the State failed to provide access to and from claimant's property; failed to provide safe and reasonable passage to and from said property; failed to provide adequate drainage of the construction site; permitted delays in construction; deprived claimant of lawful rents to which it would have been entitled; deprived claimant of the use of its property and decreased the value of and income from the property. Damage was claimed in the sum of $3,650,000, but no itemization thereof was made.

The claimant has already filed four other claims in connection with the aforesaid road construction, seeking damages for appropriations by the State of permanent and temporary easements for the construction or reconstruction work.

Claimant states that the instant motion is brought for an order permitting the late filing of an additional claim, for the purpose of preserving its rights in the event that the question of timeliness of the filing of the October 6, 1959, claim be raised and decided adversely to claimant.

The claimant asserts that not only is its claim timely filed under the provisions of the Court of Claims Act, but that it has filed said claim timely and properly under the provisions of Section 30, subdivision 15 of the Highway Law.

The principal question, therefore, to be decided is whether the time within which this claim may be filed is to be determined by Section 10, subdivision 3 of the Court of Claims Act or by Section 30, subdivision 15 of the Highway Law, which provides as follows:

'If the work of constructing, reconstructing or improving such state highways and bridges causes damage to property not acquired as above provided, the state shall be liable therefor, but this provision shall not be deemed to create any liability not already existing by statute. Claims for such damage may be adjusted by the superintendent of public works, if the amounts thereof can be agreed upon with the persons making such claims, and any amount so agreed upon shall be paid as a part of the cost of such construction, reconstruction or improvement as prescribed by this section. If the amount of any such claim is not agreed upon, such claim may be presented to the court of claims which is hereby authorized to hear such claim and determine if the amount of such claim or any part thereof is a legal claim against the state and, if it so determines, to make an award and enter judgment thereon against the state, provided, however, that such claim is filed with the court of claims within six months after the acceptance by the superintendent of public works of the final estimate of the completed contract, pursuant to an official order duly filed in the department.'

The claimant and the State agree that final acceptance of the construction work under the contract occurred on or about September 28, 1959, and that pursuant to Articles 9 and 10 of the contract agreement, final acceptance of the work in question is preliminary to acceptance of the final estimate by the Superintendent of Public Works. It does not appear in the record before the Court that acceptance of the final estimate by the Superintendent of Public Works has taken place.

Where there is an inconsistency as between two statutes, a later act, it being a subsequent expression of the legislative will, must prevail over a prior inconsistent act. Kronowitz v. Schlansky, 156 Misc. 717, 282 N.Y.S. 564; Jordan v. Smith, 137 Misc. 341, 242 N.Y.S. 142, affirmed 254 N.Y. 585, 173 N.E. 877. Section 30 of the Highway Law was embodied in Chapter 544 of the Laws of 1944, subsequent to the enactment of Section 10 of the Court of Claims Act.

A general statute will not be construed to repeal by implication a more specific statute, unless the two cannot stand together. In the case of Cimo v. State, 306 N.Y. 143, 116 N.E.2d 290, claimant alleged damage to her real property, occasioned by a change of grade of the street in front of her property, in connection with a grade crossing elimination structure. There was no appropriation of claimant's property, but the result was a change of grade of the street in front of her property. No claim was filed until more than six months after the completion of the elimination project. Claimant sought to rely on Section 10 of the Court of Claims Act; the State contended that the claimant could avail herself only of Section 6 of the 'Grade Crossing Elimination Act' (L.1928, ch. 678), under which six months is the absolute limit for the filing of the claim. The Court held, 306 N.Y. at page 149, 116 N.E.2d at page 293 'More directly related to our problem, the settled rule is: a more general statute (like Court of Claims Act, § 10 subds. 4, 5) will not repeal a more specific one (like Grade Crossing Elimination Act, § 6) unless there be patent inconsistency and the two cannot stand together, so that the Legislature is clearly shown to have intended such a result, People ex rel. Fleming v. Dalton, 158 N.Y. 175, 184, 52 N.E. 1113, 1116; People ex rel. Savory, Inc. v. Plunkett, 295 N.Y. 180, 183, 66 N.E.2d 46, 47.'

And at page 150 of 306 N.Y., at page 294 of 116 N.E.2d:

'When the Legislature creates a new right of action, otherwise unknown to the law, and in the statute of creation imposes a time limitation, that limitation is part of the grant of power and the bringing of such an action is subject...