New York State Court of Claims

New York State Court of Claims

KALODIMOS v. THE STATE OF NEW YORK, #2001-028-0530, Claim No. 92102, Motion No. M-62959


APPRAISAL - Permission to Extend Filing Date. Affidavit of retained appraiser which detailed court appearances and health issues established "good cause" to extend date for filing appraisal. Record did not warrant ninety day extension.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
FLOWER & MEDALIE, ESQS.BY: Alan Wasser, Esq.
Defendant's attorney:
BY: Rose Farrell Lowe, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 20, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for a further extension of time to file its appraisal:

• abNotice of Motion and Supporting Affirmation of Alan Wasser, Esq., filed January 9, 2001, (Wasser Affirmation) and annexed Exhibit A

• abAffidavit of Sanford Brunswick, filed January 9, 2001, (Brunswick Affidavit)
• abAffirmation in Opposition and Cross Motion to Dismiss The Claim of Rose Farrell Lowe, Esq. AAG, filed January 29, 2001, (Lowe Affirmation) and annexed Exhibits A-C
• 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.[1] 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.[2] 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, ¶¶ 3-5).[3]

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 Affirmation, ¶ 6).[4] Defendant asks 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 insufficient])[5] 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.

April 20, 2001
Albany, New York

Judge of the Court of Claims

[1] Rule 206.21 of the Rules of the Court of Claims requires that appraisals be filed within six months of the filing of the claim unless an extension of time is obtained.
[2] By Order of the Hon. Susan Phillips Read, Presiding Judge, dated November 13, 2000, this claim was transferred to the Individual Assignment Calendar of the Hon. Richard E. Sise.
[3] Claimant's appraiser believed January 10, 2001 was the last day to file the appraisal (see, Sanford Affidavit, ¶ 3).
[4] While Defendant has captioned its submission to the Court an "Affirmation in Opposition and Cross Motion to Dismiss the Claim", there is no properly noticed cross-motion before the Court (see, CPLR 2215; Matter of Briger, 95 AD2D 887, 888; Siegel, New York Practice, § 249 at 403, [3rd Ed]).
[5] The Uniform Rules for the Trial Courts contains a rule (22 NYCRR § 202.61) analogous to that of the Court of Claims regarding the filing of appraisal reports and the requirement of good cause to extend filing deadlines.