New York State Court of Claims

New York State Court of Claims

DEBARTOLO v. THE STATE OF NEW YORK, #2002-031-052, , Motion No. M-65472


Claimant's failure to commence an appropriation action within three years, coupled with its acceptance of payment from the State, constituted "an acceptance of the amount paid as full settlement of such claim" as prescribed by New York State EDPL § 503. Claimant's motion for permission to file a late claim is, therefore, denied.

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:
Defendant's attorney:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by DeBartolo Capital Partnership for permission to file a late claim:
1. Claimant's Notice of Motion, filed July 5, 2002;
2. Affidavit of Marc C. Frankenstein, Esq., sworn to June 4, 2002, with attached exhibits;
3. Claimant's memorandum of law, dated June 11, 2002;
4. Affidavit of Christopher P. George, sworn to July 31, 2002, with attached exhibits;
5. Defendant's undated memorandum of law;
6. Claimant's reply memorandum of law, dated August 20, 2002. DeBartolo Capital Partnership ("DeBartolo") seeks permission to file a late claim pursuant to § 10(6) of the Court of Claims Act ("CCA"). The proposed claim asserts a cause of action for appropriation of land owned by DeBartolo.

Claimant, the owner of Eastern Hills Mall in Clarence, New York, and Defendant agree on the facts underlying the proposed claim. The State appropriated property owned by Claimant when the Department of Transportation undertook to widen Transit Road in the vicinity of the mall. On January 29, 1998, the State filed a notice of appropriation and certified copies of the pertinent maps in the office of the Erie County Clerk. On April 3, 1998, Claimant was served with a notice of appropriation by certified mail, return receipt requested.

At some point between April 13, 1998 and March of 1999, the State made an offer of settlement to Claimant in the amount of $89,900.00. By letter dated March 18, 1999, Claimant, believing that the value of the land taken was worth more than the value ascribed by the State, submitted an Agreement of Adjustment indicating that it valued the land at $148,523.00. The State responded to this submission by requesting from Claimant documentation supporting Claimant's valuation of the land.

For whatever reason, the negotiations ended there and no further action was taken on the matter until September of 2000, when Claimant submitted a request for payment of the $89,900.00 previously offered by the State. Due to Claimant's failure to properly execute the Agreement of Adjustment submitted with this request, payment to Claimant could not be made at that time. Claimant addressed this oversight earlier this year and payment to Claimant of the $89,900.00, together with interest of $22,416.59 for a total of $112,316.59 was made on May 15, 2002. Claimant filed this motion on July 5, 2002.

Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Defendant, in opposing this motion, contests only Claimant's excuse for the delay and merit. With regard to its excuse for the delay, Claimant asserts basically that the delay was caused by personnel changes within Claimant's offices. Claimant admits that this is not a legally cognizable excuse for the delay, but correctly points out that the absence of an excuse for the delay should not necessarily preclude the relief sought. Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant, as it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g., Prusack v State of New York, 117 AD2d 729). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Witko v State of New York, 212 AD2d 889; Nyberg v State of New York, 154 Misc 2d 199).

With regard to merit, Defendant opposes this application on the basis that the Claimant's acceptance of payment from the State, coupled with Claimant's failure to commence an action within the statutorily provided three year period from the date of service of the notice of appropriation, prevents a subsequent action due to the "full settlement" provision of EDPL § 503(A). That section states:
The claimant may, at any time subsequent to the running of the three year period, receive the amount of the condemnor's offer upon proof of his entitlement thereto. The failure of a condemnee to file a claim within such three year period shall be deemed an acceptance of the amount paid as full settlement of such claim.
Defendant argues that this very issue was addressed in the recent Appellate Division, Second Department decision in Boyajian v State of New York (293 AD2d 560). In Boyajian, the Second Department reversed an earlier decision of the Court of Claims (Nadel, J.) which granted a motion for permission to file a late claim to a Claimant in an appropriation matter. Specifically, that court found that the full settlement provision of EDPL § 503(A) prevented the Claimant from commencing an action after the statutorily provided three year period when it had accepted advance payment from the State. The Court determined that the lower Court had erred in granting the application for permission to file a late claim.

Claimant argues that Boyajian is not applicable in this instance as "the ‘full settlement' issue, which was determinative in Boyajian, is not even raised under the facts of this case." (Claimant's reply memorandum of law page 2). Claimant does not, however, offer any explanation as to why the full settlement provision is not an issue in this matter. Subsequent to the three year period Claimant requested, and then accepted the State's payment of $112,316.59. I find that this acceptance of payment, combined with Claimant's failure to commence an action within the three year period, falls squarely within the purview of the "full settlement" provision of EDPL § 503(A). For this reason, Claimant's proposed claim is without merit. Claimant's motion for permission to file a late claim is denied.

October 30, 2002
Rochester, New York

Judge of the Court of Claims