Claimant is suing the State for damages stemming from an aborted contract it had to sell electricity to Niagara Mohawk Power Corporation (hereinafter NiMo) from a facility it was to build in the Town of Halfmoon, Saratoga County. The contract included a provision that NiMo could terminate the contract if the project was not on line by December 31, 1993. Claimant failed to bring the project on line by December 31, 1993. Attempts to extend the on-line date failed. NiMo notified claimant by letter dated November 19, 1992 that it was terminating negotiations to extend the contract. Claimant thereafter unsuccessfully petitioned the Public Service Commission (hereinafter PSC) to compel NiMo to revise the contract. Claimant then filed a suit against NiMo asserting, inter alia, that NiMo was estopped from exercising the option to cancel the contract which proved futile (see, Inter-Power of N. Y. v Niagara Mohawk Power Corp., 208 A.D.2d 1073, 1074).
The instant claim against the State is derived from the theory that the Department of Environmental Conservation (hereinafter DEC) caused a 15-month delay in the permit approval process claimant was required to undergo to obtain a certificate under Public Service Law article VIII from the State Board on Electric Generation Siting and Environment and the eventual cancellation of the project. Claimant was required, inter alia, to prepare certain air quality analyses for the approval process. In order to prepare them, it needed to secure information as to air emissions of various industrial and institutional facilities located in the Capital District. These were secured by purchasing inventories from DEC which were to disclose the location of major air emission sources, the conditions under which each source emitted pollutants and, for certain pollutants, the maximum amounts of such pollutants which could be emitted legally by sources in the inventories.
The State answered and interposed the defenses of untimeliness of the claims, the Statute of Limitations, failure to comply with State Finance Law § 112, contributory negligence, assumption of risk on claimant's part and estoppel. Claimant moved to dismiss the State's first two defenses or, in the alternative, for permission to file a late claim pursuant to Court of Claims Act § 10. The State cross-moved for summary judgment alleging that the claim was untimely under Court of Claims Act § 10, barred by the Statute of Limitations and that there was a lack of subject matter jurisdiction (see, CPLR 3211 [a] ).
The Court of Claims concluded that the claims "based upon negligence must be filed within ninety days of accrual unless a notice of intention is filed within that time and then the claim must be filed within two years of accrual". The court also stated that "[c]laims based upon breach of contract or implied warranty must be filed within six months of accrual unless a notice of intention is filed within that time and then the claim must be filed within two years of accrual".
The Court of Claims found that claimant could not ascertain or fully evaluate its damages until November 19, 1992 when NiMo announced that it would enforce the December 1993 deadline and held that the claim accrued on that date. The first and second affirmative defenses were stricken and the State's cross motion to dismiss was denied. This appeal by the State ensued.
The State urges that the "when damages are ascertainable" line of cases used in property damages cases should not apply in the context of regulatory governmental actions. It urges that we adopt the standard that such claims must be brought no later than 90 days from when the agency erred. It argues that by August 27, 1991 claimant knew of DEC's errant data to which DEC admitted and that this should be the accrual date of its claim.
Ordered that the order is affirmed, with costs.