Rosefsky by Koffman v. State

Decision Date27 October 1994
Citation617 N.Y.S.2d 969,205 A.D.2d 120
PartiesAlec ROSEFSKY, by Ruthanne KOFFMAN, His Attorney-in-Fact, Appellant, v. STATE of New York, Respondent.
CourtNew York Supreme Court — Appellate Division

Aswad & Ingraham (Richard N. Aswad, of counsel), Binghamton, for appellant.

G. Oliver Koppell, Atty. Gen. (Vernon Stuart and Peter G. Crary, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, WHITE and YESAWICH, JJ.

YESAWICH, Justice.

Appeal from an order of the Court of Claims (Hanifin, J.), entered October 21, 1993, which, inter alia, partially granted the State's motion for summary judgment dismissing the claim.

In 1982, claimant leased the first floor of a building at 92 Hawley Street in the City of Binghamton, Broome County, to the State for use by the State Education Department (hereinafter Department). Claimant was thereafter declared incompetent, and at all times and in all matters relevant to this action he acted through his attorney-in-fact, the guardians of his property, and their legal counsel. In time, the Department sought to expand its operations into a portion of the second floor of the building, and on June 1, 1986, after claimant completed certain requested renovations for which the Department agreed he was to be reimbursed by the State, the Department began occupying approximately 2,000 square feet of the second floor.

The original lease, with agreed-upon renewals, expired on May 31, 1986, and while negotiations proceeded with respect to the terms of a new lease that would cover both floors, the State continued paying rent at an annual rate of $9 per square foot for the first floor only. Difficulties were encountered in settling on terms that were acceptable to both parties--in part because claimant had sold the building on June 15, 1988, making it impossible for him to commit to a long-term lease--but negotiations continued until November 8, 1989, when the Commissioner of General Services informed claimant's then-counsel that, as there was no fully executed contract for rental of the second floor, the State did not intend to pay any rent for occupation of that space for the 25 months between June 1986 and June 1988, nor for the renovations that claimant had funded to make that occupancy possible.

On May 8, 1990 claimant filed a notice of intention to file a claim, and on April 17, 1991 he filed a claim against the State seeking $37,500 in rent, at the annual rate of $9 per square foot, for the second floor space occupied by the Department, $3,675 in rent for the first floor for June 1988, and $11,710 for the renovations. The State moved to dismiss the claim or, in the alternative, for summary judgment; claimant cross-moved for summary judgment. The Court of Claims found the claim to have been timely interposed, given claimant's legal disability, but granted the State's motion as to the first and third causes of action, those seeking reimbursement for the renovation and rental of the second floor, finding them barred by State Finance Law § 112(2). Claimant appeals.

Preliminarily, the State argues that the claim should have been dismissed for want of jurisdiction, for neither the notice of intention nor the notice of claim was filed within six months of the claim's accrual (see, Court of Claims Act § 10[4]. Because guardians had been appointed for claimant, and he acted through an attorney-in-fact, represented by legal counsel, during the period when the events underlying this claim were unfolding, the State suggests that claimant should not be permitted to rely upon the toll afforded by Court of Claims Act § 10(5) to those under a legal disability. We are unpersuaded. When the Legislature has seen fit to make this type of exception to a tolling provision, it has done so explicitly (see, Workers' Compensation Law § 115). There being no such exception in Court of Claims Act § 10(5), we must presume that it was intended to apply to all claimants under a legal disability, regardless of whether they are represented (see, Young v. State of New York, 92 Misc.2d 795, 401 N.Y.S.2d 955; cf., Murphy v. Village of Fort Edward, 213 N.Y. 397, 403, 107 N.E. 716).

But even if claimant were not entitled to the toll provided by Court of Claims Act § 10(5), the claim would still have been filed in a timely manner, for negotiations concerning the base rental rate were ongoing until November 8, 1989, when the State indicated that it did not intend to pay anything at all for the second floor or the renovations. Only then, when claimant was apprised that no lease would be signed and no payment forthcoming, could the resulting damages be ascertained (see, Waters of Saratoga Springs v. State of New York, 116 A.D.2d 875, 877, 498 N.Y.S.2d 196).

As for the merits, the Court of Claims was correct in its determination that the claim for rent for the second floor is barred by State Finance Law § 112(2), which required, at the time, that any contract with a value greater than $5,000 be approved by and filed with the Comptroller before it could become effective. We disagree with claimant's characterization of his relationship with the State as creating a contract implied-in-law for money had and received--enforcement of which is not barred by State Finance Law § 112--rather than as a contract implied-in-fact.

A contract implied-in-law exists where one party, without any expression of assent from the other, obtains or retains possession of money or other property that actually belongs to the latter, by oppression, extortion, deceit or...

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    ...of money or other property that actually belongs to the latter, by oppression, extortion, deceit or similar means” (Rosefsky v. State of New York, 205 A.D.2d 120, 123 [1994] ). Here, the record is replete with testimony, correspondence and documents evidencing words and acts between CAMBA a......
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    ...or other property that actually belongs to the latter, by oppression, extortion, deceit or similar means." Rosefsky by Koffman v. State, 617 N.Y.S.2d 969, 971 (N.Y. App. Div. 1994). A contract implied in law "rests upon the equitable principal that a person shall not be allowed to enrich hi......
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