State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 20, 2016 522631
________________________________
NEW YORK STATE THRUWAY
AUTHORITY,
Respondent,
v MEMORANDUM AND ORDER
ALLIED WASTE SERVICES OF NORTH
AMERICA, LLC, Also Known as
ALLIED WASTE SERVICES, et
al.,
Appellants.
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Calendar Date: September 7, 2016
Before: Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.
__________
Marcus & Cinelli, LLP, Williamsville (David P. Marcus of
counsel), for appellants.
Eric T. Schneiderman, Attorney General, Albany (Fredrick A.
Brodie of counsel), for respondent.
__________
Rose, J.
Appeal from an order of the Supreme Court (O'Connor, J.),
entered October 9, 2015 in Albany County, which, among other
things, denied defendants' motion for partial summary judgment.
On March 23, 2011, a dump truck owned and operated by
defendant Allied Waste Services of North America, LLC collided
with the underside of one of plaintiff's bridge overpasses.
Plaintiff made minor, temporary repairs to the bridge and, in
September 2013, sent a letter to Allied demanding compensation
for the estimated cost of repair in the total amount of $913,276.
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After failing to reach a resolution, plaintiff commenced this
action in March 2014 asserting negligence, among other causes of
action, and seeking damages in the amount of $913,276, a
collection fee pursuant to State Finance Law § 18 in the amount
of $200,920 and prejudgment interest from the date of the
accident. Following joinder of issue, however, plaintiff revised
its estimate of the cost of repair, ultimately asserting damages
of $449,424. Thereafter, defendants moved for partial summary
judgment dismissing plaintiff's claims for a collection fee and
prejudgment interest, and plaintiff cross-moved for partial
summary judgment on the issue of liability. Supreme Court denied
defendants' motion and granted plaintiff's cross motion.
Defendants now appeal.
Initially, we note that defendants do not dispute their
liability for the damage to the bridge and, since the
commencement of this appeal, they have remitted the revised
repair costs to plaintiff, but without the addition of any
prejudgment interest or collection fee. As for Supreme Court's
denial of that part of their motion seeking dismissal of
plaintiff's claim for the prejudgment interest, defendants argue
that plaintiff was not entitled to such interest because it did
not suffer any damage until it paid for the permanent repairs to
be completed, which did not occur until after defendants remitted
the repair costs to plaintiff. We cannot agree.
Prejudgment "[i]nterest shall be recovered upon a sum
awarded" by virtue of, among other things, an act that interferes
with "title to, or possession or enjoyment of, property" (CPLR
5001 [a]; see Lizden Indus., Inc. v Franco Belli Plumbing &
Heating & Sons, Inc., 95 AD3d 738, 739 [2012]; Urban v B.R.
Guest, Inc., 45 AD3d 1418, 1418 [2007]; BVE Prods., Inc. v Saar
Co., LLC, 40 AD3d 349, 349-350 [2007]). Such interest is
calculated "from the earliest ascertainable date the cause of
action existed, except that interest upon such damages incurred
thereafter shall be computed from the date incurred" (CPLR 5001
[b]; see Brandt Corp. v Warren Automatic Controls Corp., 37 AD2d
563, 563 [1971]; see also NML Capital v Republic of Argentina, 17
NY3d 250, 257-258 [2011]; Revell v Guido, 124 AD3d 1006, 1013
[2015]; Pallette Stone Corp. v Guyer Bldrs., 212 AD2d 862, 863
[1995]). The earliest ascertainable date a cause of action for
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damage to property exists is the time at which the injury occurs
(see Pilatich v Town of New Baltimore, 100 AD3d 1248, 1249
[2012]; Manhattanville Coll. v James John Romeo Consulting Engr.,
P.C., 5 AD3d 637, 641 [2004]).
The earliest date plaintiff's cause of action existed was
March 23, 2011, as that was the date on which plaintiff sustained
damages to its bridge as a result of defendants' negligence,
despite the fact that plaintiff waited to expend funds to make
permanent repairs until after defendant paid the revised cost
estimate (see Gussack Realty Co. v Xerox Corp., 224 F3d 85, 93
[2d Cir 2000]; DeWall v Owl Homes of Victor, 213 AD2d 977, 978
[1995]; Property Owners Assn. of Harbor Acres v Ying, 137 AD2d
509, 511 [1988]; see also Seward Park Hous. Corp. v Greater N.Y.
Mut. Ins. Co., 43 AD3d 23, 34 [2007]). Inasmuch as all of the
damage to the bridge was sustained on the day of the accident and
no further damages were incurred thereafter, the exception to
CPLR 5001 (b) does not apply (see e.g. NML Capital v Republic of
Argentina, 17 NY3d at 258; Barnett v Schwartz, 47 AD3d 197, 208
[2007]).
We find merit, however, in defendants' contention that
Supreme Court erred in denying that part of their motion seeking
dismissal of plaintiff's claim for a collection fee pursuant to
State Finance Law § 18. That statute authorizes a collection
fee, not to exceed 22% of the outstanding debt, "to cover the
cost of processing, handling and collecting" the debt where the
debtor has failed to remit payment within 90 days of the
submission of a billing invoice (State Finance Law § 18 [5]; see
Lawyers' Fund for Client Protection of State of N.Y. v Bank Leumi
Trust Co. of N.Y., 94 NY2d 398, 408 [2000]). The statute defines
a "debt" as a "liquidated sum due and owing any state agency,"
with the term "liquidated" being defined as "an amount which is
fixed or certain or capable of being readily calculated, whether
or not the underlying liability or amount of the debt is
disputed" (State Finance Law § 18 [1] [b], [d]).
The damages claimed by plaintiff in the September 2013
demand letter were based on an estimate by its engineers that
involved replacing the entire girder, including undamaged
portions, due to the fear that replacing just the damaged portion
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would result in a destabilization of the bridge. However,
plaintiff subsequently referred the case to its design
contractor, who recalculated the cost of repair after determining
that only the portion of the girder that was damaged needed to be
replaced and that destabilization could be avoided by the use of
counterweights and temporary supports. Based upon this
recalculation, and after the commencement of this action,
plaintiff revised its original estimate of the extent of the work
necessary to repair the damage to the bridge, but did not reduce
the amount of the collection fee sought. Rather, plaintiff
argues that it is entitled to a collection fee based upon
defendants' failure to remit payment of the original estimate of
the cost to repair within 90 days of the September 2013 demand
letter.
In our view, plaintiff's original estimate was not a
"liquidated sum due and owing" (State Finance Law § 18 [1] [b]),
as plaintiff's initial assessment of the extent of the repairs
drastically changed after the design contractor reviewed it. We
do not view this as a mere dispute about "the underlying
liability or amount of the debt" (State Finance Law § 18 [1]
[d]), because the cost of repair was the measure of damages here
and the dollar amount of such damages was not "capable of being
readily calculated" until plaintiff chose the ultimate method of
repair (State Finance Law § 18 [1] [d]). Thus, under the unique
facts of this case, we find that Supreme Court erred in failing
to grant that part of defendants' motion seeking dismissal of
plaintiff's claim for a collection fee.
Peters, P.J., McCarthy, Garry and Mulvey, JJ., concur.
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ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied defendants' motion
for summary judgment dismissing plaintiff's claim for a
collection fee; motion granted to that extent; and, as so
modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court