NUZZI v. THE STATE OF NEW YORK, #2000-015-079, Claim No. 101199

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					NUZZI v. THE STATE OF NEW YORK, #2000-015-079, Claim No. 101199, Motion Nos.
M-61757, CM-62025

                                              Synopsis

        Landowner's attempt to renege on contact for sale of land to DEC in light of more
lucrative offer from the County of Suffolk in claim seeking multiple forms of equitable relief
denied for lack of subject matter jurisdiction.

                                       Case Information

UID:                                 2000-015-079

Claimant(s):                         NUZZI FAMILY LIMITED LIABILITY COMPANY

Claimant short name:                 NUZZI

Footnote (claimant name) :

Defendant(s):                        THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):                     101199

Motion number(s):                    M-61757

Cross-motion number(s):              CM-62025

Judge:                               FRANCIS T. COLLINS

Claimant’s attorney:                 Somer & Heller LLP
                                     By: Stanley J. Somer, Esquire
Defendant’s attorney:                Honorable Eliot Spitzer, Attorney General
                                     By: Martin Rowley
                                     Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                      September 13, 2000

City:                                Saratoga Springs

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
                                              Decision

        The motion of the defendant for an order pursuant to CPLR 3212 1 granting summary
judgment dismissing the claim for lack of merit is granted, and the cross-motion of the claimant
for an order pursuant to Court of Claims Act § 10 (6) permitting it to serve and file a late claim is
denied. During 1995, Armand and Carmela Nuzzi owned two parcels of vacant real property
totaling approximately 38.1 acres located in the ecologically significant Pine Barrens in East
Quogue, Town of South Hampton, Suffolk County, New York. The Nature Conservancy, a
non- profit corporation dedicated to preserving sensitive environmental areas, was interested in
acquiring the two parcels for the benefit of New York State and its State Pine Barrens
Acquisition Program. On November 9, 1995, a representative of the Nature Conservancy wrote
to Mr. and Mrs. Nuzzi expressing its interest and advising that the New York State Department
of Environmental Conservation (DEC) had custody of appropriated funds for the purchase of
land located in the Long Island Pine Barrens. The letter advised Mr. and Mrs. Nuzzi that DEC
intended to carry out the acquisition program on a willing buyer - willing seller basis and that the
Nature Conservancy would be acting as DEC's agent in preparing an offer based upon an
independent appraisal of the fair market value of the parcels. The letter further advised that the
offer was subject to approval by the Attorney General, an environmental inspection, and funds
being available from the State. The appraisal commissioned by the Nature Conservancy
determined a value of $363,000. By letter dated August 22, 1996, the Nature Conservancy
offered Mr. and Mrs. Nuzzi the sum of $307,000 for the entire property based on a value of
$8,058 per acre.
        The Nuzzi's retained attorney Roy List to convey their acceptance of the offer and
represent them in the sale of the property. On October 4, 1996, a legal assistant employed by
the Nature Conservancy wrote to attorney List enclosing a draft land purchase agreement. By
letter dated March 13, 1997, attorney List advised the Nature Conservancy that Mr. and Mrs.
Nuzzi were eager to complete the sale but first wanted to transfer the property into a family
limited liability company for tax purposes.
        A land purchase agreement for the conveyance of the two parcels dated September 8,
1997 was entered into between the Nuzzi Family Limited Liability Company and the Nature
Conservancy. Paragraph 16 of the contract provided, "[t]his Agreement may be assigned by the
Purchaser to the State of New York, acting through its Department of Environmental
Conservation, at any time prior to delivery of deed. . . . All terms and conditions of this
Agreement shall remain in full force and effect upon assignment". The contract further
provided that the purchaser's obligations were subject to the approval of the Comptroller and the
Department of Law. Of importance to this litigation are paragraphs 20 and 21 of the contract
which provide as follows:
                 20. The Closing of title hereunder shall occur within six (6) months of
                 the date this Agreement is fully executed by the parties hereto, and shall
                 occur at the Suffolk County Center, Riverhead, New York or at such other

1
 Although the notice of motion refers to CPLR 3211, the Court is treating the motion as made
pursuant to CPLR 3212 since the defendant has joined issue by the service of its answer dated
October 18, 1999.
               date and such different time and place as may be mutually agreed upon by
               the parties. The delivery to and acceptance of the deed by Buyer and the
               subsequent disbursement of the Purchase Price to Seller shall constitute
               the "Closing."
               21. The seller's obligation to deliver the deed to the purchaser is
               expressly conditioned on the assignment of this agreement to the State of
               New York and the assumption of the obligations of the purchaser by the
               State of New York. In the event that this agreement is not assigned to
               and assumed by the State of New York then the seller's obligation to
               deliver the deed shall be expressly conditioned upon the receipt by the
               seller of the purchase price at a Closing to be scheduled within six (6)
               months from the date this agreement is fully executed by the parties
               hereto.
         On September 18, 1997, the Nature Conservancy and DEC Commissioner John P. Cahill
executed an assignment of the land purchase contract from the Nature Conservancy to the State
of New York. The Department of Law approved the assignment on March 23, 1998 and the
Comptroller approved the assignment on May 6, 1998.
         On November 7, 1997, the Associate Director of Land Protection and Government
Relations of the Nature Conservancy wrote to DEC to advise that the final survey showed that
the actual acreage involved was 38.291 acres resulting in a contract purchase price of
$308,548.88. On November 19, 1997, attorney List forwarded to the Nature Conservancy the
articles of organization of the Nuzzi Family Limited Liability Company, its operating agreement,
and a copy of the deed transferring the two parcels from Mr. and Mrs. Nuzzi to the Limited
Liability Company. On June 3, 1998, DEC's Region I Bureau of Real Property Regional
Supervisor sent a letter to Mr. List requesting that the deed, voucher in triplicate, affidavit of
title, tax and finance forms TP-584 and RP-5217 be completed and signed. On July 13, 1998,
attorney List wrote to DEC acknowledging receipt of the documents and stating that prior to
executing and returning the documents the sellers had several questions concerning the
procedures to be followed in consummating the sale. In particular, the sellers feared that a
missing signature upon the assignment from the Nature Conservancy to the State of New York
might affect its validity and wanted to know when they would receive payment. Mr. List set
forth a further concern of the sellers as follows:
                 Paragraph '20' of the land purchase agreement provides 'the Closing of the
                 title hereunder shall occur within six (6) months of the date this agreement
                 is fully executed by the parties hereto...' Since more than six (6) months
                 have occurred since the execution of the land purchase agreement, it
                 would seem to me that there should be some writing extending the closing
                 so that the contract continues to be enforceable.
        Peter Hallenbeck, an attorney in the Real Property Division of the Office of the Attorney
General, discussed the seller's concerns with Mr. List who, by letter dated July 23, 1998 from
Mr. List to Mr. Hallenbeck, advised Mr. Hallenbeck that "the sellers [sic] have several concerns
relating to the land purchase agreement which you have addressed and satisfied". The concern
regarding the validity of the assignment was cured by Mr. Hallenbeck agreeing to send to Mr.
List a fully signed copy of the assignment. The concern relative to timely payment was
addressed by an agreement providing that if payment was not made within sixty days following
delivery of the deed the Limited Liability Company would maintain an action against the State to
recover the purchase price with appropriate interest. With respect to the closing date, Mr. List
stated:
                Second, paragraph '20' of the land purchase agreement provides, 'the
                Closing of the title hereunder shall occur within six (6) months of the date
                this agreement is fully executed by the parties hereto. . . ' Since more than
                six (6) months have occurred since the execution of the land purchase
                agreement, the sellers want to be satisfied that the contract will continue to
                be enforceable. You expressed that because the date is not a time of the
                essence date and because neither party has unilaterally set a date for
                closing the contract will continue in full force and effect until some future
                action by one of the parties.
        In the concluding paragraph of his letter, attorney List stated, "If the above correctly
memorializes your understanding of the law and procedure with respect to this land purchase
contract, please sign and fax to me a copy of this letter. Then immediately upon receipt of a
copy of the fully signed assignment I will forward to you signed originals of all the transfer
documents sent to me by Patricia B. Zielenski". Mr. Hallenbeck countersigned the letter
agreeing to the stated terms. Thus, as late as July 23, 1998, the attorney for the claimant took
the position that the contract was still in full force and effect and that either party could
unilaterally set a date for the closing. The executed closing papers were not delivered and on
October 16, 1998 Ms. Zielenski recorded the September 8, 1997 land purchase agreement and
the September 18, 1997 assignment with the Clerk of Suffolk County.
        On August 11, 1998, claimant met with representatives of the County of Suffolk to
discuss the purchase of the property for the Suffolk County Drinking Water Protection Program.
By letter dated August 13, 1998, Suffolk County offered to purchase the parcels for a total sum
of $578,195. On October 5, 1998, the Limited Liability Company and Suffolk County entered
into contracts of sale in accordance with the offer. On January 8, 1999, the Land Management
Specialist of Suffolk County wrote to claimant's present attorney stating that unless the cloud
upon the title to the parcels created by the filing of the assignment and purchase agreement was
cleared, Suffolk County would not go forward with the sale. During March of 1999, the Nuzzi
Family Limited Liability Company commenced an action in Suffolk County Supreme Court
against the Nature Conservancy and DEC seeking to set aside the September 8, 1997 land
purchase agreement and expunge that document and the assignment from the records of the
Clerk of Suffolk County. The instant claim was filed with the Clerk of the Court on October 4,
1999. A notice of intention to file a claim was received by the Attorney General on August 3,
1999 and the claim itself was received by the Attorney General on September 28, 1999. The
verified answer with affirmative defenses was filed with the Clerk of the Court on October 20,
1999.
        In support of the dismissal motion, defendant argues that the Court lacks subject matter
jurisdiction to entertain the first cause of action seeking a declaration that the contract and
assignment "should be declared null and void as of March 9, 1998" because the relief sought is
purely equitable. Defendant makes the same argument with respect to the second cause of
action asserting that "[t]he assignment of contract should be expunged from the record to remove
the cloud on the title" and additionally argues that there is another action pending between the
same parties for the same relief in Supreme Court, Suffolk County. Finally, defendant argues
that claimant has failed to join a necessary party, the Suffolk County Clerk.
        The third cause of action proceeds upon a theory of unjust enrichment and requests that
the defendant be required to pay the claimant the sum of $271,000 in the event that the claimant
is required to transfer title to the State of New York. Defendant argues that there is another
action pending between the same parties for the same relief, that claimant cannot recover on a
quasi-contractual theory when there is a valid contract in place between the parties, and that the
third cause of action fails to state a viable cause of action.
        The fourth cause of action sounding in slander of title is based on the October 16, 1998
recording of the contract and assignment. Again, defendant argues that there is another action
pending between the parties for the same relief in Supreme Court. Further, defendant argues
that slander of title requires allegations of malice and special damages which are not alleged in
the claim. Defendant points out that the punitive damages requested in this cause of action may
not be recovered against the State. Finally, it is contended that since the notice of intention was
not received until August 3, 1999, more than 90 days after the accrual of the tort on October 16,
1998, the claim is not timely as neither a notice of intention to file a claim nor a claim was
served upon the Attorney General within 90 days of accrual as required by Court of Claims Act §
10 (3).
        The fifth cause of action proceeds upon a theory of tortious interference with contract and
the defendant asserts that it should be dismissed for the same reasons posited with regard to the
fourth cause of action.
        The position of the claimant is set forth at page nine of its memorandum of law as
follows: "The lynch pin of Claimants [sic] claims is that there was no timely assignment to the
State and that the contract expired by its terms on March 9, 1998". At point IV of its
memorandum of law the claimant argues that this Court has subject matter jurisdiction over the
slander of title, tortious interference and reformation causes of action, apparently conceding a
lack of subject matter jurisdiction with regard to the first cause of action for a declaratory
judgment and the second cause of action for a judgment directing the expungement of the
contract from the records of the Suffolk County Clerk. To the extent that the third, fourth and
fifth causes of action may not have been timely pursued the claimant seeks late claim relief.
        The Court will first address the dismissal motion. The first cause of action set forth in
the claim seeks a judgment declaring the purchase contract to be null and void as of March 9,
1998. No money damages are sought with respect to the first cause of action. The law is
settled that except for a limited range of cases involving insurance disputes (Court of Claims
Act § 9 (9-a)), an issue not present in this claim, the Court of Claims lacks authority to render a
declaratory judgment (Wikarski v State of New York, 91 AD2d 1174). The test is whether the
primary relief sought is equitable or monetary in nature (Ozanam Hall of Queens Nursing Home
v State of New York, 241 AD2d 670). Here, the first cause of action seeks only equitable relief
in the form of a declaratory judgment; the unavailability of which in this Court requires its
dismissal.
        The second cause of action alleges that the Nature Conservancy had the right to assign
the contract to DEC at any time prior to the delivery of the deed and that an assignment was
executed by the Nature Conservancy on September 18, 1997. It is alleged that DEC did not
execute the assignment until March 19, 1998 and that approval by the Department of Law and
the Comptroller did not occur until March 23, 1998 and May 6, 1998, respectively. It is alleged
that the six month period within which the closing was required to take place under the contract
expired on March 9, 1998 and, therefore, the purported assignment of the contract was
untimely. Claimant avers that the recording of the assignment of the contract made after the
expiration date for the closing is a cloud upon claimant's title that should be given no legal effect.
The requested relief is a judgment directing that the assignment of contract be expunged from the
record to remove the cloud on title.
        If the vendee of a contract for the sale of real property fails to close within a reasonable
time causing the contract to be canceled, and later files the contract causing it to be a cloud
upon title, the remedy of the contract vendor is an action to expunge the contract from the record
of the appropriate County Clerk's office (Kitching v Browne, 119 Misc 513). An owner in
possession may invoke a court of equity to discharge a cloud on title and the procedural vehicle
to secure that relief is article 15 of the Real Property Actions and Proceedings Law (Hibiscus
Harbor v Ebersold, 53 Misc 2d 868). Since it has waived its immunity pursuant to RPAPL §
1541, the State is an appropriate defendant in an RPAPL § 1501 suit brought in a court other
than the Court of Claims, and the relief afforded may include the rescinding of any improperly
filed instruments creating a cloud upon title (Hurley v Hurley, 50 NY2d 78). On this motion,
the Court is particularly concerned that while "an action under RPAPL article 15 to compel a
determination of a claim to real property is a statutory action, it has been described as a hybrid
one in which the relief awarded is in large measure equitable in nature" (Dowd v Ahr, 168 AD2d
763, 765, revd on other grounds, 78 NY2d 469; New York and Brooklyn Suburban Inv. Co. v
Leeds, 100 Misc 2d 1079, 1085). As stated earlier in this opinion with respect to the first cause
of action, the Court of Claims does not have subject matter jurisdiction to award purely equitable
relief. Here, there are no money damages sought with respect to the second cause of action,
only the equitable relief of expunging the assignment of contract. Consequently, the Court of
Claims lacks subject matter jurisdiction of the second cause of action set forth in the claim and,
accordingly, the second cause of action is dismissed.
        The allegations of the third cause of action are as follows:
                22. By virtue of the purported assignment between the Nature and
                Respondent, DEC, DEC has assumed all the obligations of THE
                NATURE.
               23. Upon information and belief the Respondent, DEC and the State,
               knew or should have known, that the fair market value of the subject
               property on or about September 8, 1997 was $578,000.00.
               24. That should Claimant be required to transfer title to the subject
               property to Respondent, DEC and the State, that Respondent DEC and the
               State would be unjustly enriched in the sum of $271,000.00.
               25. That as a result of the foregoing, Respondents should be required to
               pay Claimant the sum of $578,000.00 for title to said property.
        A cause of action contained in a claim that has not yet ripened must be dismissed as
premature (Park v State of New York, 226 AD2d 153). Here, the relief requested in the third
cause of action is based upon an event which has not yet occurred, i.e., claimant being required
to transfer title of the subject property to DEC and the State. Such event would occur only if a
court ordered specific performance of the contract. This Court does not have subject matter
jurisdiction to grant the equitable remedy of specific performance (Amberge v State of New
York, 186 AD2d 962). Unless, and until, that event occurs, the third cause of action is
premature and must be dismissed.
        The rules of law governing the availability of the quasi contractual cause of action for
unjust enrichment were set forth by the Court of Appeals in Clark-Fitzpatrick, Inc. v Long Is.
R.R. Co., 70 NY2d 382, 388 as follows:
                      Turning to plaintiff's cause of action sounding in quasi contract, we
              conclude that it was properly dismissed. The existence of a valid and
              enforceable written contract governing a particular subject matter
              ordinarily precludes recovery in quasi contract for events arising out of the
              same subject matter (Blanchard v Blanchard, 201 NY 134, 138; see also,
              66 Am Jur 2d, Restitution and Implied Contracts, § 6, at 949). A "quasi
              contract" only applies in the absence of an express agreement, and is not
              really a contract at all, but rather a legal obligation imposed in order to
              prevent a party's unjust enrichment.
        Here, paragraph 24 of the third cause of action makes clear that the defendant will only
be unjustly enriched if the claimant is required to transfer title to the subject property. That
event will only occur pursuant to a Supreme Court determination that the contract is valid and
enforceable. A determination that there exists a valid express written agreement requiring the
conveyance of property requires the dismissal in this Court of any claim seeking to vary the
contract price under an implied contract theory (Dominick P. Massa & Sons v State of New
York, 147 AD2d 799, 800). Finally, the third cause of action lacks merit because the
Comptroller never gave his approval of a contract to purchase the claimant's property for the
price of $578,000. The pertinent portion of State Finance Law § 112 provides:
               2. (a) Before any contract made for or by any state agency, department,
               board, officer, commission, or institution, shall be executed or become
               effective, whenever such contract exceeds ten thousand dollars in
               amount, it shall first be approved by the comptroller and filed in his or her
               office. . .
        "The statute's purpose is to protect the public from governmental misconduct and
improvidence" (City of New York v State of New York, 87 NY2d 982, 985). Any person
contracting with the State is chargeable with knowledge of the terms of State Finance Law § 112
(SHLP Assoc. v State of New York, 262 AD2d 548), and the "Comptroller's approval may not be
waived nor can the State be estopped to assert the statute's protection" (Edward C. Flaherty Corp.
v State of New York, 102 Misc 2d 438, 440). Section 112 applies to a contract whereby the
State purchases an interest in real property (Berliner v State of New York, 204 Misc 448; Long
Island R.R. Co. v State of New York, 185 Misc 646). The operation of the statute requires the
dismissal of any cause of action seeking reimbursement in an amount beyond the contractual
price approved by the Comptroller (Rosefsky v State of New York, 205 AD2d 120). Section
112 of the State Finance Law will bar a recovery upon an implied contract theory if the claimant
is seeking to enforce a contract but upon terms other than those approved by the Comptroller
(Parsa v State of New York, 64 NY2d 143; Nevins Realty Corp. v State of New York, 240 AD2d
480).
        Here, paragraph nineteen of the land purchase agreement specifically states that the
purchaser's obligations under the agreement "are subject to the approval of this agreement by the
Comptroller of the State of New York". On May 6, 1998, the Comptroller approved the
assignment of the land purchase contract to the State of New York at a purchase price of
$307,000 based upon a value of $8,058 per acre with the final purchase price to be adjusted upon
a survey establishing the exact acreage involved. The Comptroller never approved the purchase
of the 38.291 acres at a price of $578,195, the price offered claimant by the Suffolk County
Drinking Water Protection Program. For claimant to recover upon the allegations of the third
cause of action there would have to be specific performance of the land sale contract but at a
price $271,000 higher than the terms approved by the Comptroller. Such relief is prohibited by
State Finance Law § 112 and the unavailability of such relief requires the dismissal of the third
cause of action.
        The fourth cause of action seeks to recover upon a theory of slander of title due to the
action of Patricia B. Zielenski in filing the land purchase contract and assignment in the Suffolk
County Clerk's Office on October 16, 1998 which allegedly created a cloud upon claimant's title
resulting in the County of Suffolk threatening to cancel its two contracts to purchase the property
for the sum of $578,195. Defendant seeks dismissal of the fourth cause of action upon several
grounds. First, defendant argues that the cause of action accrued on October 16, 1998 when the
contract and assignment were recorded. Court of Claims Act § 10 (3-b) requires that a claim to
recover for the intentional tort of a State employee must be preserved by the service and filing of
a claim within 90 days of accrual or the service upon the Attorney General of a notice of
intention to file a claim within the same time period. The defendant argues that since the
Attorney General did not receive the notice of intention to file a claim until August 3, 1999,
more than 90 days after accrual, the fourth cause of action must be dismissed. In addition,
defendant argues that the pleading fails to state a cause of action in that there is no allegation of
malice, a necessary element. The Attorney General further contends that the Court lacks subject
matter jurisdiction of that portion of the claim seeking punitive damages. Finally, it is argued
that there is another action pending for the same relief in Suffolk County Supreme Court.
        The tort of slander of title is based upon statements or actions that render title to real
property unmarketable by casting doubt upon the validity of the owner's title to the property
(Hirschhorn v Town of Harrison, 210 AD2d 587, 588). "The elements of slander of title are (1)
a communication falsely casting doubt on the validity of a complainant's title, (2) reasonably
calculated to cause harm, and (3) resulting in special damages" (Brown v Bethlehem Terrace
Assoc., 136 AD2d 222, 224). "An action for slander of title is maintainable only on a showing
of malice" (Regan v Lanze, 42 AD2d 831). The wrongful filing of an unfounded claim to the
property of another casting doubt upon the owner's title is actionable as slander of title
(Hanbidge v Hunt, 183 AD2d 700, 701). The cause of action is available in this Court against
the State of New York and special damages should be pleaded (Mink Hollow Dev. Corp. v State
of New York, 87 Misc 2d 61).
        The first issue for determination is whether the notice of intention received by the
Attorney General on August 3, 1999 was timely. Defendant contends that the claim accrued at
the time the contract and assignment were filed with the County Clerk. Claimant argues that
slander of title is a continuing tort arising anew each day upon the State's refusal to voluntarily
withdraw the filed contract and assignment. Both parties are in error as to the accrual date of
this claim. A claim in this Court generally accrues when damages are ascertainable (Flushing
Natl. Bank v State of New York, 156 Misc 2d 979, affd 210 AD2d 294). In the case of
Hanbidge v Hunt, supra, 701, the Appellate Division quoted the applicable rule stating, "[i]t has
generally been held that the cause of action to recover damages for slander of title based upon
the recording of an unfounded claim to the property of another does not arise until damages
actually result, so that the period of limitations begins to run, not from the date of the initial
recording, but from the time a prospective sale is lost because of the cloud on plaintiff's title".
Here, the claim accrued on January 8, 1999 when the County of Suffolk advised claimant's
attorney that the County would not go through with the sale due to the filing of the September 8,
1997 land sale contract and the September 18, 1997 assignment. Since the notice of intention to
file a claim was not received by the Attorney General within 90 days of the time the claim
accrued, the fourth cause of action must be dismissed (Mallory v State of New York, 196 AD2d
925, 926).
         Even if the fourth cause of action was not dismissed for failure to comply with the time
requirement of Court of Claims Act § 10 (3-b), it would have to be dismissed for failure to state a
cause of action as there is no allegation that Ms. Zielenski acted with malice, and there is no
allegation of special damages. Finally, this Court does not have subject matter jurisdiction of a
cause of action against the State of New York for punitive damages (Sharapata v Town of Islip,
56 NY2d 332).
         The fifth cause of action proceeds upon a theory of tortious interference with the contract
between the claimant and the County of Suffolk caused by the filing of the assignment of the
land purchase contract. The only damages sought upon the claim are punitive damages. The
elements of a cause of action for tortious interference with contract are the existence of a valid
contract, defendant's knowledge of that contract and intentional interference with it, resulting in a
breach and damages (Hoag v Chancellor, Inc., 246 AD2d 224). Since intentional conduct is
required, the time in which the claim must be pursued is governed by Court of Claims Act § 10
(3-b). A cause of action for intentional interference with a contract will accrue at the very latest
at the time that the injured party learns of the wrongful acts (German v Pope John Paul, II, 211
AD2d 456). Claimant concedes that it learned of the defendant's interference with its contract
with Suffolk County no later than January 9, 1999. Since the notice of intention to file a claim
was not received by the Attorney General until more than 90 days after that date the fifth cause
of action must be dismissed (Mallory v State of New York, supra. Furthermore, since only
punitive damages are sought this Court lacks subject matter jurisdiction to entertain the fifth
cause of action (Sharapata v Town of Islip, supra).
         Turning to the cross-motion, the cross motion papers do not contain a proposed late
claim. The granting of a late claim motion where the moving papers are not accompanied by a
proposed claim is reversible error (Davis v State of New York, 28 AD2d 609). As a result, the
cross-motion is denied.


                                                                                September 13, 2000
                                                                         Saratoga Springs, New York

                                                                         HON. FRANCIS T. COLLINS
                                                                         Judge of the Court of Claims


       The Court considered the following papers:
       1.    Notice of motion dated May 15, 2000;
2.                   The affirmation of Martin Rowley dated May 15, 2000, with exhibits;
3.                   Affidavit of Patricia B. Zielenski sworn to May 11, 2000, with exhibits;
4.                   Affirmation of Peter Hallenbeck dated May 10, 2000, with exhibits;
5.                   Notice of cross-motion dated July 11, 2000;
6.                   Affidavit of Anthony Nuzzi sworn to July 13, 2000, with exhibits;
7.                   Reply affirmation of Martin Rowley dated July 19, 2000, with exhibit.

				
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