New York State Court of Claims

New York State Court of Claims

BRITTON v. THE STATE OF NEW YORK, #2000-001-031, Claim No. 96836, Motion No. M-60240


Synopsis



Case Information

UID:
2000-001-031
Claimant(s):
TODD M. BRITTON and RANDALL S. BRITTON
Claimant short name:
BRITTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96836
Motion number(s):
M-60240
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
The Effron Law FirmBy: Joshua J. Effron, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Martin Rowley, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 27, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion to compel the substitution of the proper legal representative for deceased claimant Randall S. Britton and to dismiss claimants' second cause of action: Notice of Motion, dated August 25 and filed August 26, 1999; Affirmation of Martin Rowley, Esq., AAG, dated August 24 and filed August 26, 1999, with annexed Exhibits A-D; Affidavit of Dennis Flannery, sworn to August 23 and filed August 26, 1999, with annexed Exhibits A-F; Affirmation of Joshua J. Effron, Esq., dated November 2 and filed November 4, 1999; Reply Affirmation of Martin Rowley, Esq., dated November 10 and filed November 12, 1999; Affirmation of Joshua J. Effron, Esq., dated December 8 and received December 13, 1999; and letter from Joshua J. Effron, Esq. to Martin Rowley, Esq., dated December 24 and received January 4, 1999 [sic].


Defendant State of New York ("defendant" or "the State") brings this motion to compel an amendment to the caption of the claim pursuant to Court of Claims Act § 15, and to dismiss the second cause of action alleged in the claim. In 1994, claimant Todd M. Britton ("claimant") and his father, claimant Randall S. Britton, Sr. ("claimant's father" or "the deceased claimant") purchased property in the Town of Rensselaerville, Albany County. In 1995 the State filed an appropriations map affecting a portion of claimants' property in connection with a highway project. The claim's first cause of action seeks compensation for the property appropriated by the filing of the map; the second cause of action alleges a de facto appropriation arising from the wrongful and unlawful entry of defendant's agents, servants, employees and/or contractors upon a portion of claimants' property not affected by the map, the removal of numerous trees and shrubs from that site and the continued use of it as part of the highway project.

First, it appears that claimant's father died on June 8, 1996, more than a year before this claim--in which he is named as a claimant--was filed (see, letter from Joshua J. Effron, Esq. to Martin Rowley, Esq., dated December 24 and received January 4, 1999 [sic]). Court of Claims Act § 15 authorizes the Attorney-General to move for dismissal on the basis of a surviving claimant's failure to secure an order substituting the representative of a deceased claimant's estate within six months of a deceased claimant's death. Here, however, defendant seeks dismissal only in the event that claimant fails to secure the proper substitution within 30 days of this order (Affirmation of Martin Rowley, Esq., dated August 24 and filed August 26, 1999 ["Rowley Aff."]). Claimant is willing to make the substitution, but asks for 60 days in which to do so (Affirmation of Joshua J. Effron, Esq., dated November 2 and filed November 4, 1999).

Defendant also points out that nearly two years after the deceased claimant's death, claimant swore under oath that he and the deceased claimant resided at a particular address and that they owned the property in question at the time of the appropriation (Reply Affirmation of Martin Rowley, Esq., dated November 10 and filed November 12, 1999). As a result of the failure by claimant and his counsel to make timely substitution, defendant requests that interest on any award be suspended from the date this claim was filed.

Neither claimant nor his attorney has offered any explanation for the error in the caption. Although authorized to move for dismissal based on section 15, defendant has not indicated any prejudice on account of claimant's error in captioning the claim. It appears that interest on the claim has already been forfeited for the period starting six months after the claim accrued through the date the claim was filed pursuant to Court of Claims Act § 19 (1). Given the lack of any prejudice to defendant, the denial of interest from the date of filing forward does not appear warranted. Because claimant carries the burden to initiate this action in the name of the proper parties and correction of the caption is now several years overdue, a period of 30 days in which to rectify the error seems adequate.

Turning now to defendant's motion to dismiss the second cause of action for a de facto appropriation, the Court notes that the defendant has, in effect, moved for summary judgment under CPLR 3212 since issue is joined for purposes of an appropriation claim when the claim is filed with proof of service in the Clerk's office (see, Uniform Rules for the Court of Claims

§ 206.21 [a]). Claimant's second cause of action is explicitly cast as one for a de facto appropriation, but its language would also support a claim for trespass.[1] The distinction between a de facto appropriation and trespass rests upon the degree to which the intrusion upon a property owner's rights is egregious and permanent (see, Vinciguerra v State of New York, 262 AD2d 743; Sassone v Town of Queensbury, 157 AD2d 891). Naturally, this is a very fact-specific inquiry, and, as discussed below, the facts presented on this motion are too sketchy for the Court to make any determination.

Next, a distinction must be drawn between the actions upon which the second cause of action is based and other actions complained of in the papers, but not incorporated in the claim. Specifically, the general contractor, August Bohl Contracting Co., Inc. ("Bohl"), placed construction trailers on an unappropriated portion of claimant's property on April 21, 1995. Claimant complained and after negotiations between claimant and Bohl for a temporary easement proved fruitless, the trailers were removed on May 3, 1995 (see, Affidavit of Dennis Flannery, sworn to August 23 and filed August 26, 1999 ["Flannery Aff."], ¶ 3). The placement of the trailers on the property is not alleged in the claim and does not factor in resolving this motion.

Instead, the claim alleges the cutting of numerous trees and shrubs and the continued use of unappropriated property for the highway project. The papers submitted establish that a utility pole was erected on claimant's unappropriated property, and that trees and shrubs were cut to provide a path for the electrical line ( see, Flannery Aff., ¶ 4). Again, negotiations ensued, this time between claimant, defendant, Bohl, Stilsing Electrical, Inc. ("Stilsing", an electrical subcontractor) and Central Hudson Gas and Electricity, Inc. ("Central Hudson", the utility company). Eventually, the utility pole was removed and electricity was brought into the work site via a path that did not intrude upon claimant's property.

It is impossible to determine from the papers submitted exactly how much time transpired between the initial cutting of the trees and shrubs (or the erection of the pole--whichever came first) and the eventual removal of the utility pole; however, these acts appear to have taken place over a relatively short period of time (compare, Flannery Aff., ¶ 4, Exhibits D, E). The papers neglect to detail how many trees or shrubs were cut: the claim describes them as "numerous" and defendant does not elaborate upon or contradict this description; therefore, it appears that "numerous" trees and shrubs were cut without permission and that for a short period of time claimant's property was physically invaded by the utility pole and the work crew(s) who installed and later removed it.

Further, employees and/or agents of Stilsing or Central Hudson may have cut the trees and shrubs, and installed and removed the pole (id., Rowley Aff., Exhibit C). Although Stilsing is referred to as an electrical subcontractor, it is not clear whether it was a subcontractor for Bohl or for Central Hudson. Similarly, the papers do not establish whether Central Hudson contracted with Bohl or directly with defendant. Those portions of defendant's "standard specifications" applicable to its contract with Bohl and submitted in support of this motion label Bohl an "independent contractor" (Flannery Aff., Exhibit F). Defendant argues that it is not vicariously liable for the acts of the independent contractor or its agent who actually performed the work in question; however, this contract provision alone does not dispose of defendant's potential vicarious liability (see, e.g., Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725 [distinction between employee and independent contractor involves a question of fact as to whether the employer controls either the results produced or the means used to achieve the results]).

Dennis Flannery, the civil engineer who served as the Department of Transportation's "Engineer in Charge" of the project in question, states that the utility pole was placed by Central Hudson and that it is his "understanding" that employees of Central Hudson or Stilsing actually cut the trees (Flannery Aff., ¶ 4). Further, "[t]he Department of Transportation did not cut down any trees, did not have advance knowledge that these trees were to be cut, did not acquiesce in the cutting, did not suggest or request these trees be cut and did not approve of this cutting" (id., ¶ 5). Mr. Flannery ordered the utility pole's removal once it was determined to be on claimant's property, outside of the existing right-of-way; however, his affidavit is silent as to whether the State played any part in the original siting of the pole. Claimant indicates in his deposition that an employee or agent of Stilsing cut the trees, but there is no evidence that he actually witnessed the trees being cut (Rowley Aff., Exhibit C).

Defendant takes the position that any action for trespass or injury to property lies against Bohl, Central Hudson, or Stilsing. Claimant argues that pursuant to section 30 (17) of the Highway Law,[2] defendant is liable for the damages resulting from the temporary occupancy of the unappropriated land. In this regard, the Court notes that the appropriation map identifies the utility pole's location, which conflicts with defendant's denial of responsibility for the intrusion on claimant's property prompted by the pole's siting (Flannery Aff., ¶ 4, Exhibit C). If the contractors were simply adhering to defendant's plan by placing the pole in the location indicated by the map, the intrusion appears attributable to defendant, not the contractors.

The test on a motion for summary judgment is whether the pleadings raise a triable issue of fact (see, Harris v City of New York, 147 AD2d 186). From the papers submitted, the Court is not able to conclude, as a matter of law, that the intrusion upon claimant's property rights is too slight to qualify as a de facto appropriation or that the intrusion did not constitute a "temporary occupancy during construction" for which the State may be liable in damages under Highway Law § 30 (17). In short, defendant has failed to establish that it is entitled to a dismissal of the second cause of action as a matter of law.

Based on the foregoing, the Court denies defendant's motion to dismiss the second cause of action; and directs claimant to substitute the proper legal representative for deceased claimant Randall S. Britton, Sr. within thirty (30) days after this order is filed.

June 27, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
The second cause of action is untimely if based on trespass (see, Court of Claims Act §§ 10 [2], [3]), but timely if it qualifies as a de facto appropriation (Court of Claims Act § 10 [1]).
[2]
Highway Law § 30 (17) authorizes certain entities involved in highway projects to enter property for, inter alia, "temporary occupancy during construction."