• abFiled Papers: Claim. Motion Papers M-59452.
This claim, which involves the appropriation of a permanent partial taking of a
parcel and a temporary easement in the Town of Smithtown, New York, was filed on
July 10, 1995. Prior to claimant's instant application, there were four (4) "So
Ordered" Stipulations which extended the parties time to file appraisals from
January 10, 1997 to June 15, 1998.
Thereafter, Claimant's counsel moved for permission to be relieved as counsel,
withdrew that application and then moved for permission to extend the time for
Claimant to file his appraisal. That motion (M-59452) was granted by the Hon.
Leonard Silverman in a Memorandum Opinion and Decision filed in the Office of
the Chief Clerk on October 10, 2000. Pursuant to the terms of that decision,
Claimant had ninety (90) days from the date of filing with the Chief Clerk in
which to file his appraisal. As such, January 8, 2001 was the last day for
Claimant to file his appraisal.
The instant motion was served on January 8, 2001 and filed with the Court on
January 9, 2001.
Claimant's proffered reasons
for the inability to timely file the appraisal, which all related to the
Claimant's chosen expert, were the expert's workload, health and the seasonal
holidays. According to the expert, seven (7) days were spent in trial, along
with the "many hours of preparation work," and two bouts of asthma took an
additional two week bite out of the period of October 12, 2000 and January 10,
2001 (Sanford Affidavit
The State opposes the motion by noting the procedural history, the reasons
previously offered for an extension and concludes that the Order of October 10,
2000 was Claimant's "one more chance" to file his appraisal (Lowe
, ¶ 6).
that the Court suspend interest if Claimant's motion is granted.
An application for an extension of time must satisfy different standards
depending on whether it is made before the filing deadline expires (22 NYCRR
§ 206.21(g)(2), "showing good cause") or after the expiration (22 NYCRR
§ 206.21(g)(3), "showing unusual and substantial circumstances"; Dufel v
State of New York, 187 AD2d 792). The burden of proof rests with the movant
to demonstrate the circumstances which warrant the exercise of the Court's
discretion (Fiesinger v State of New York, 88 Misc 2d 557, 561, citing
Hogan v State of New York, 43 AD2d 876). Here, the Court applies the
"good cause" standard as the motion was served prior to the expiration of the
deadline for filing the appraisal.
In order to establish good cause a movant can not rely on mere conclusory
assertions (see, Matter of City of Albany
, 199 AD2d 746, 747,748
[statement that personnel change resulted in appraisal report being
"inadvertently lost, misplaced or misfiled" held
but an "arguably tenable
excuse" will provide an ample foundation (Matter of Town of Guilderland
244 AD2d 604, 605-606). In effect, since "good cause" is not defined and its
determination is vested to the Court's discretion, each case must be viewed on
its individual facts (see, Saratoga County Sewer Dist. No. One v Duell
95 Misc 2d 62).
While defendant's patience, as evidenced by its refusal to consent to either
of claimant's most recent requests, is understandably exhausted, 22 NYCRR §
206.21(g) has provided a mechanism for Claimant to seek a further extension of
time. But for the earlier delays occasioned by Claimant's personal conduct
(Wasser Affirmation, ¶ 3) this application is the first necessitated
by the preparation of the appraisal report itself and is supported by an
affidavit from the appraiser (compare, Fiesinger v State of New
York, supra, 88 Misc 2d at 561 [no affidavit from "putative
expert"]). On the papers submitted in support of the motion, the Court finds
that Claimant has established good cause for a further extension of time.
However, given the value of the claim, the fact Claimant has not provided any
indication that the appraisal is particularly complex (see, Dowling Coll. v
State of New York, 97 AD2d 455), the passage of time and Claimant's
representation in the first application for an extension of time that a
preliminary report had been prepared ( Wasser Affirmation ¶ 4
[Motion Papers M -59452]) the Court finds no basis for an additional ninety day
extension. Accordingly, Claimant is granted an extension of forty-five (45)
days from the date of filing of this decision in the Clerk's office.
Lastly, the Court will rule on the suspension of interest at the appropriate
time; now, however, is not that time.