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
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
The distinction between a de
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,
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
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.