New York State Court of Claims

New York State Court of Claims

LIBERTY v. THE STATE OF NEW YORK, #2000-004-535, Claim No. 100685, Motion No. M-61297


Synopsis



Case Information

UID:
2000-004-535
Claimant(s):
LIBERTY DINER & RESTAURANT CORP.
Claimant short name:
LIBERTY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100685
Motion number(s):
M-61297
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
JOSHUA J. EFFRON, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER,
ATTORNEY GENERAL
BY: ELLEN LEARY COCCOMA,Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 6, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State moves, pursuant to CPLR § 3124, for an Order compelling Claimant to respond


to interrogatories.


The following papers are before the Court:

Claim, filed July 9, 1999 1

Defendant's First Set of Interrogatories, filed August 12, 1999 2


Defendant's Second Set of Interrogatories, filed
November 8, 1999 3

Notice of Motion, filed March 6, 2000 4


Affirmation of Ellen Leary Coccoma, AAG, in support
of motion, with attached exhibits, dated March 3, 2000 5


Affirmation of Good Faith of Ellen Leary Coccoma, AAG,
dated March 3, 2000 6


Affirmation of Joshua J. Effron, Esq., with attached exhibits,
dated March 14, 2000 7

Daily Report of Motion Activity, dated March 22, 2000 8


Letter from Ellen Leary Coccoma, AAG, to the Court dated
September 18, 2000 9


This is an appropriation Claim. It and at least five other appropriation Claims were apparently triggered by the same State highway project. The Claimants in all six of the Claims are represented by the same counsel and counsel for Claimants and the State have combined the Claims with regard to certain discovery documents, for convenience. For example, Paper No. 7, the Affirmation of Joshua J. Effron, sets forth the titles of all six Claims and addresses the State's demands for interrogatories with regard to each separate Claim.


By letter dated September 18, 2000, the State's counsel withdrew motions similar to the one before the Court herein in all of the other five Claims. (Paper No. 9) In this letter withdrawing the motions in the other five Claims, State's counsel states,
...Defendant requests a ruling on the motion with respect to Claimant Liberty Diner & Restaurant as no answers to the interrogatories have been supplied and more than three months has elapsed since the date of May 31, 2000 given by the Court for compliance.

Defendant requests that the claim be dismissed or interest be suspended in accordance with the request made in Defendant's affirmation of March 20, 2000.

The original motion herein was returnable on March 22, 2000. On that date the Court conducted a telephone conference with Claimant's counsel and the Assistant Attorney General assigned to this Claim. As a result of the conference the subject motion was held in abeyance until May 31, 2000. In the course of that conference, the Court informed Claimant's counsel that if Claimant did not respond to the interrogatories by May 31, 2000, the Court would suspend interest to the "maximum"[1].


In his affirmation addressing the six motions and specifically with regard to the subject motion dated March 14, 2000, Claimant's counsel states,
6. Liberty Diner and Restaurant Corp. again involves principals who do not reside in New York. Again, the State served two (2) sets of interrogatories, the first consisted of 45 complex questions, the second consisted of five (5) questions and in no event was space provided within which to submit answers (Exhibits "H" and "I"). Again, here, upon receipt I communicated with the client's principals to obtain the necessary information to propound answers.

***

9. I have worked with due diligence to respond, reminding the Court that I am a sole practitioner with obligations in other districts of this Court as well as in Supreme Court, and not unlimited resources. I can assure the Court that all reasonable steps have been taken to assemble the required data to answer the questions propounded. I believe that we can complete these interrogatories within four (4) months, noting that each claim has, within it, certain complexities that have to be analyzed.

WHEREFORE, I have no objection to any of the State's motions but would request an additional four (4) months to serve response [sic].

(Paper No. 7)


A copy of the letter to the Court from State's counsel requesting a ruling on the State's motion with regard to Liberty Diner & Restaurant Corp. (Paper No. 9) was sent to Claimant's counsel, but it produced no response, at least among the papers before the Court.


In support of the motion, State's counsel affirms:
9. To date our office has not received responses to any of the interrogatories which were duly served on the claimant.

10. The defendant is entitled to receive a response to its interrogatories. Without responses to the interrogatories, it is not possible for defendant's expert to complete his work on the appraisal which will further delay these proceedings. Such delay could result in the imposition of interest on defendant for any award that might be received by the claimant.

11. As a result of the foregoing, defendant requests an order pursuant to CPLR 3124 directing claimant to file and serve responses to the defendant's first set of interrogatories and defendant's second set of interrogatories and for such other and further relief as to the court may seem just and proper.

(Paper No. 5)


The State's motion did not seek an order dismissing the Claim nor did it explicitly seek an order suspending interest.


Among other things, the interrogatories seek information with regard to income and expenses generated by the subject property. (see, Paper No. 2, ¶ 34; Paper No. 3, ¶ 2)


The Court will suspend interest from May 31, 2000 until such time as the Claimant responds adequately to the interrogatories and will direct the Claimant to respond to those interrogatories on or before November 10, 2000. If there is no response to the interrogatory demands by that date, the Court will entertain a motion to dismiss this Claim. (cf., Kihl v Pfeffer, 94 NY2d 118)


In light of the foregoing, it is


ORDERED that statutory interest be and it hereby is suspended on the ultimate award herein, if any, from May 31, 2000, and it is further


ORDERED that Claimant respond to the State's demands for interrogatories on or before November 10, 2000.


ENTER.


October 6, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims



[1]
The source of this quote is the Court's notes.