New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2003-010-006, Claim No. 103065, Motion Nos. M-65869, CM-65958


Synopsis


defendant's motion to dismiss the claimant partnership as the named claimant and claimant's cross-motion for leave to serve and file an amended claim in the name of the individual partners is granted.

Case Information

UID:
2003-010-006
Claimant(s):
GEORGE A. JOHNSON, JR., ELSA R. STOSSEL AND VIRGINIA M. TRACY, A PARTNERSHIP
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103065
Motion number(s):
M-65869
Cross-motion number(s):
CM-65958
Judge:
Terry Jane Ruderman
Claimant's attorney:
GOLDSTEIN, GOLDSTEIN, RIKON & GOTTLIEBBy: Michael Rikon, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 5, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-4 were read and considered by the Court on defendant's motion to dismiss the claimant partnership as the named claimant and claimant's cross-motion for leave to serve and file an amended claim in the name of the individual partners:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.........................1

Attorney's Affirmation in Opposition and Exhibits.................................................2

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibit................3

Attorney's Reply Affirmation...................................................................................4

Defendant seeks an order striking the partnership as a named claimant because, inter alia, the purported partnership does not have any title to the subject properties. Rather, each of the properties is titled in the named individuals and confirmed in the 1994 partnership agreement. The individuals entered into a partnership agreement after the properties were acquired; however title was never conveyed to the partnership, nor does the partnership have any legal interest in the properties. The individuals remain the record owners (Defendant's Ex. D) and the appropriation maps filed by defendant reflect the individuals as the record owners. Accordingly, defendant seeks an order striking the partnership from the claim as a named claimant and leaving the named individuals as the only proper party claimant for a joint trial of the individual claims resulting in separate judgments.

The opposition to defendant's motion fails to cite any authority establishing that a partnership, without legal title, has standing to sue. Nor is there any evidence presented that the parcels were developed and jointly used. Rather, the cases cited present facts distinguishable from the instant case. Guptill Holding Corp. v State of New York, 23 AD2d 434 involved two contiguous parcels, jointly used and separately owned by an individual and a corporation that was owned and controlled by said individual. The Court held that the rule of unity of title or ownership should be "relaxed" on these particular facts where there was sufficient proof of unqualified control by one individual over both tracts of land (id. at 437). Thus, the two tracts as developed should be treated as one in determining damages. In the instant case, the factors of Guptill were not present. Here, each of the properties is owned by individuals and there is no title in the partnership's name.

DiBacco v State of New York, 46 AD2d 461 is also distinguishable. There, the property had been continuously operated as a family farm for more than 30 years when the mother conveyed part of the property to her sons, and she retained part of the property where she shared a home with one of the sons. Another part of the property was cultivated by the sons, for which they paid an annual rental of $500. After the taking of the bulk of the mother's land and the bulk of the cultivated part of the land, the property was valued as a single unit in determining damages, despite the difference in actual title, and the sons were awarded damages for the cultivated land taken. The Court rejected the State's argument that the sons were not entitled to an award because they did not own the land and only had a leasehold for one year at time. The Court found, on the facts presented, a de facto unity of use of the parcels. The Court noted that "while the leasehold was technically short term, there is adequate basis for a finding that, given the relationship of the fee holders and the continuous use for more than 34 years as a family operation, the certainty of annual renewal was sufficient to invest the sons with a much greater interest in the property than a stranger with a short-term lease might have" (id. at 462-63).

Finally, Red Apple Rest. Inc. v State of New York, 46 Misc 2d 623, affd 27 AD2d 417, is also inapposite. The Court of Claims found a single economic unity of two parcels that did not have unity of ownership. One parcel was owned by an individual and the other by a corporation. The individual was the president of the corporation who owned and controlled 196 shares of a total of 200 shares of the corporation and controlled the corporation. There were also other indicia of unity of ownership and control of the two parcels. Nonetheless, on appeal, the Appellate Division rejected the Court of Claims finding of a single economic unit and found such theory to be unsupported by the record (Red Apple Rest. Inc., 27 AD2d 417, 419-20). In any event, none of the above factors is present in the instant case.

On the facts presented, there is no basis for finding a unity of title or ownership so as to warrant a departure from the general rule and to value the property as one unit in determining damages as to each claimant (see City of Rochester v 230 Portland Ave., 270 AD2d 885, 886 [facts did not fall within narrowly confined exceptions to the general rule of unity of ownership]).

Defendant's motion to dismiss the partnership as a named claimant and claimant's cross-motion for leave to file an amended claim in the name of the individual parties are GRANTED to the extent that the caption is deemed amended, as indicated below, to reflect the individuals as the only proper party claimants:

STATE OF NEW YORK COURT OF CLAIMS


_______________________________________________



GEORGE A. JOHNSON, JR., ELSA R. STOSSEL AND


VIRGINIA M. TRACY,



Claimants,



-v-



THE STATE OF NEW YORK,



Defendant.


_______________________________________________


February 5, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims