Why Calverton Aviation & Technology filed an amended complaint in its suit against Riverhead

The filing of the original complaint was procedurally defective. The new filing cures the defect.

In a Feb. 7 stipulation, the town agreed to the new filing.

There is “little substantive difference” between the original complaint and the amended complaint.

The town has until March 29 to answer or otherwise respond to the complaint.

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Calverton Aviation & Technology has filed an amended complaint in its breach of contract action against the Town of Riverhead to correct a procedural defect. The amended complaint was filed with the consent of the town.

CAT originally failed to file a notice of claim with the town clerk prior to commencing the lawsuit, as required by state law. 

N.Y. State Town Law prohibits a breach of contract action from being filed against a town unless a written verified claim is filed with the town clerk and 40 days have passed since the claim was filed. CAT failed to take this step 40 days before commencing its action, which opened the door to the town asking the court to dismiss the complaint. 

However, the statute, Town Law §65, allows the aggrieved party in a breach of contract action against a town 18 months to commence an action, with the clock starting to tick on the date the cause of action “accrues.” 

In CAT’s case against the town, the cause of action accrued when the town by resolution declared its agreements with CAT “null and void” on Oct. 24. That means CAT had until April 24, 2025 to bring its lawsuit.

Since CAT could simply re-file the suit after complying with the state law, attorneys for the town and CAT agreed in a Feb. 7 stipulation that CAT could file an amended complaint to reflect its filing of a notice of claim with the town clerk on Jan. 8, the same date the summons and complaint were initially filed in court.

In the stipulation, the parties agreed CAT would file an amended complaint on Feb. 23 and the town would have until March 29 to answer or otherwise move against the complaint. The town also waived any defense pertaining to lack of jurisdiction due to CAT’s failure to timely file the notice of claim in the first place.

“Substantively, there is very little difference between the first complaint and the amended [complaint],” Riverhead Town Attorney Erik Howard said in an email Tuesday.  “As I would have anticipated, it just references post-filing public statements that they must feel aid their case.”

Read Amended Complaint and Original Complaint below.

Howard acknowledged that the town could have made a motion to dismiss the original complaint on the ground that CAT failed to comply with the requirements of Town Law §65. Such a motion would likely be successful, he said.  

“CAT’s recourse would be to withdraw and refile.  Our preference was to just get on with it, rather than suffer any delays associated with motion practice and/or repleading,” Howard said.

A line-by-line comparison of the amended complaint filed Feb. 23 with the original version filed Jan. 8 shows two differences, both in the “Factual Background” portion of the complaint.

CAT added a new paragraph 95 (page 29) stating the town “never intended to facilitate the sale of the EPCAL Property or otherwise honor the Purchase Agreement.” It says the entire arrangement with the Riverhead Industrial Development Agency was “orchestrated” by the town “for the sole purpose” of allowing the town to “walk away” from their deal with CAT. It quotes comments by Supervisor Tim Hubbard made at a Jan. 13 Heart of Riverhead Civic Association meeting reported by RiverheadLOCAL here. 

The new paragraph was added to an existing section of the “Factual Background” titled “The Town and the CDA’s Fraudulent Scheme to Escape Their Obligations to CAT.”

The other change was the addition of a new section to the “Factual Background” titled “CAT’s Notice of Claim” (page 59). In that new section, CAT states it served the notice of claim on Jan. 8 as required by state law. CAT also states town officials on Jan. 12 and 13 made statements indicating they have no intention of negotiating a settlement with CAT and both town and IDA officials have refused to resolve the issues. 

Amended Complaint (Changes highlighted.)

Original Complaint