Bouton v. Byers

GINA M. LOPEZ-SUMMA

Synopsis

Defs. motions to dismiss. Claimant's cross-motion for late claim, CCA 10(8) and CCA 10(5) relief.

Case information

Defendant(s):

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Signature date:

Official citation:

Appellate results:

See also (multicaptioned case)

UID:	2014-045-009
Claimant(s):	DANA LITTLEFORD
Claimant short name:	LITTLEFORD
Footnote (claimant name) :
		STATE OF NEW YORK
Footnote (defendant name) :
		120599
Motion number(s):	M-83585, M-83728
Cross-motion number(s):	CM-83843
Judge:	GINA M. LOPEZ-SUMMA
Claimant's attorney:	The Gough Law Firm, LLP By: Deborah R. Gough, Esq.
Defendant's attorney:	Hon. Eric T. Schneiderman, Attorney General By: Peter S. Zadek and Ross N. Herman, Assistant Attorneys General
Third-party defendant's attorney:
		March 13, 2014
City:	Hauppauge
Comments:

Decision

The following papers were read and considered on these motions: Defendant's Notice of Motion to Dismiss the Claim, Defendant's Affirmation in Support with annexed Exhibits A-G, Defendant's Notice of Motion to Dismiss the "Complaint" served on June 3, 2013, Defendant's Affirmation in Support with annexed Exhibits A-C, Claimant's Notice of Cross Motion and Opposition to Defendant's Motions to Dismiss, Claimant's Affirmation in Support of Cross Motion and in Opposition to Defendant's Motions to Dismiss with annexed Exhibits A-I, Defendant's Affirmation in Opposition to Cross Motion and in Further Support of Motion to Dismiss with annexed Exhibits A-I, Claimant's Reply Affirmation, Defendant's Sur Reply in Opposition to Cross Motion and in Further Support of Motion to Dismiss and Claimant's Sur-Reply Affirmation.

Defendant, the State of New York, initially brought a motion (M-83585) pursuant to CPLR § 3211 and Court of Claims Act (CCA) § 11 seeking an order dismissing the claim. Defendant then filed a second motion (M-83728) pursuant to CPLR § 3211(a)(2) and CCA §§ 10(3) and 11(a) seeking an order dismissing the "Complaint" served on June 3, 2013. In response, claimant, Dana Littleford, has cross-moved for an order: (1) pursuant to CCA § 10(8) to permit claimant to treat the notice of intention as a claim or in the alternative (2) permitting claimant to file a late claim pursuant to CCA § 10(6) or in the alternative (3) permitting claimant to re-file his claim pursuant to CPLR 205(a). Claimant contends that all avenues of relief are available as claimant's legal disability tolls the applicable statute of limitations.

The claim in this matter was mistitled a "complaint."

The underlying claim in this matter states that on May 24, 2010 claimant was admitted to the Comprehensive Psychiatric Emergency Program (CPEP) unit located within defendant's hospital, Stony Brook University Medical Center (Stony Brook). Claimant sought professional care at Stony Brook due to his suicidal ideation and certain psychological and physical complaints. The claim concerns the allegedly negligent actions by defendant in failing to keep claimant safe while he was a patient in the CPEP. Claimant contends, inter alia, that defendant failed to properly assess another patient (hereinafter referred to as the assailant) in CPEP, failed to supervise the assailant, a known violent patient and failed to intervene when the assailant assaulted claimant and caused claimant to sustain serious injuries. Claimant suffered multiple facial fractures and soft tissue swelling. Claimant was treated at Stony Brook where he received stitches and underwent surgery to rebuild the his facial bones as a result of the assault.

Procedurally claimant served a notice of intention upon the Attorney General's Office on July 23, 2010 by certified mail, return receipt requested. Thereafter, claimant served the claim upon the Office of the Attorney General by facsimile on November 17, 2011. Claimant personally served the claim on Stony Brook on December 12, 2011. On December 21, 2011 defendant interposed an answer in which it raised improper service as its eleventh affirmative defense. On June 3, 2013, claimant served on the Office of the Attorney General by certified mail, return receipt requested, a copy of the claim which was originally faxed to it on November 17, 2011.

Defendant seeks dismissal of the claim filed on November 17, 2011 as it was served on the Office of the Attorney General by facsimile and not by one of the methods authorized by CCA §11(a)(i). Claimant concedes that the claim was served on the Attorney General's Office by facsimile.

CCA §11(a)(i) provides in pertinent part that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."

The Court of Appeals has long held that "suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law [and because of this] statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). "[N]othing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). Accordingly, claimants who have not met the service requirements of the Court of Claims Act have not properly commenced their actions (Lichtenstein v State of New York, 93 NY2d 911 [1999]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). Therefore, the Court is constrained to dismiss the claim.

Defendant also seeks dismissal of the claim on the grounds that the claim which was served upon the Attorney General's Office by certified mail, return receipt requested on June 3, 2013 was served outside the relevant statute of limitations period.

Claimant does not clearly explain what he intended to accomplish by serving the June 3, 2013 claim. A corresponding claim was not filed with the Court at that time.

Assuming that claimant was attempting to re-serve the original claim in a manner authorized by CCA § 11(a)(i) it must fail as it was served outside the applicable limitations period contained within CCA § 10(3). CCA § 10(3) provides that in a situation where a notice of intention has been served on the attorney general, the claim shall be filed and served upon the attorney general within two years after the accrual of such claim. The June 3, 2013 claim was served well after the two year time period expired. Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act § 10(3) pled her concern with an unwillingness to simply walk away from the lucrative professorship. To allay that concern, Byers promised Bouton $1 million upon his death—albeit in the form of the homeplace or some other ranchland—to resign from the law school faculty so she could devote her full time and energy to his business interests and personal needs. The purpose was to induce Bouton to take the necessary step of giving up her teaching job, not to fix the terms and conditions of her employment at the ranch. That those terms and conditions remained indefinite or even undiscussed at all in March 2005 had no bearing on the point of the promise or the action it reasonably might induce and did, in fact, induce when Bouton resigned from the law school faculty less than 2 months later. The absence of any negotiation or agreement in March 2005 on terms of Bouton's employment at the ranch doesn't render Byers' promise so indefinite that the statute of frauds would bar a remedy.

As we have said, Bouton's remedy is tailored to the circumstances of the promise and the particular conduct on her part it reasonably induced—the abandonment of her teaching position. The award Bouton has requested, based on an economist's expert opinion, reflects the net amount she lost by making that decision. While the particular amount may be open to dispute, the general theory of recovery entails restitution placing Bouton in the financial position she would have occupied had she not relied on the promise to her detriment. See Glendale Federal Bank, FSB v. United States, 239 F.3d 1374, 1380 (Fed.Cir.2001) (“ ‘The basic aim of restitution is to place the plaintiff in the same economic position as the plaintiff enjoyed prior to contracting.’ ”) (quoting Calamari & Perillo, The Law of Contracts [§ 15.44th ed.1998] ). The Kansas statute of frauds does not impose an impenetrable legal barrier to that sort of restitutionary recovery on an oral promise, even if the promise itself called for the transfer of land. • Measure of Damages

Byers argues that the correct measure of damages for the breach of promise is the value of the services Bouton provided at the ranch. He characterizes the proper remedy as quantum meruit. We reject that argument, since it recasts both Bouton's claim and the factual record.

Bouton and Byers negotiated her duties at the ranch and agreed on a measure of compensation. Those terms and conditions were embodied in their written contracts. Bouton has not claimed or sued on a theory that the compensation was inadequate. In some cases where a person has performed services for another based in part on an oral promise that land would be bequeathed as part of the compensation, the Kansas courts have awarded the actual value of the services provided rather than ordering specific performance and transfer of the property. Byers cites Bahney v. Gross, 135 Kan. 446, 449, 10 P.2d 844 (1932), as an example.

But Bouton is not suing on the theory she was promised land valued at more than $1 million as part of the direct compensation for her services to the ranch operations or to Byers personally. Rather, she contends Byers made the promise specifically to induce her to leave her teaching position, thereby freeing her to devote full time to the ranch work. So the measure of damages for breach of that promise wouldn't be the value of Bouton's work at the ranch, which she and Byers set in their contracts, but the financial benefit she forsook by resigning from the law school faculty. Nor do we see how Byers' dissatisfaction with Bouton in December 2008 and his decision to terminate their employment relationship at that point affects the measure of damages. Byers made the promise to get Bouton to quit her job at the law school. She did so. Those circumstances lay the factual and legal basis for the promissory estoppel claim. That Byers specifically wanted Bouton to then come to the ranch to work or that he later changed his mind and didn't want her working there doesn't have a direct bearing on the claim or the damages.[2]

[2]We are not faced with a situation in which the promisee quit after a short time or was fired for dishonesty or some other misfeasance and then sought to enforce the promise for $1 million in land or to obtain some form of restitution. Circumstances of that type could undercut or severely curtail any form of equitable relief. See Green v. Higgins, 217 Kan. 217, Syl. ¶ 1, 535 P.2d 446 (1975) (“[N]o person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct.”); Inman v. Inman, 67 P.3d 655, 659 (Alaska 2003) (recognizing and applying “the maxim that a party must do equity to receive equity”).

Conclusion

The district court erred in granting summary judgment to Byers. Taking the record evidence favorably to Bouton, a factfinder could conclude she reasonably relied on Byers' March 2005 promise and Byers reasonably could have anticipated that reliance. Byers has not advanced alternative arguments that would support summary judgment in his favor. The record contains disputed facts and credibility determinations that preclude summary judgment and require a trial.

Reversed and remanded for further proceedings.