New York State Court of Claims

New York State Court of Claims

ROBERTS v. STATE OF NEW YORK, #2003-015-347, Claim No. 105344, Motion No. M-66972


Court granted defendant's motion to extend time for filing of State's appraisal and expert report in appropriation case. State showed unusual and substantial circumstances as required by 22 NYCRR 206.21 (g).

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:
William V. Roberts and Janet M. Roberts, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael A. Sims, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 15, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for an order extending the time to file its appraisal and expert reports is granted. By order to show cause signed June 16, 2003 the defendant moved pursuant to 22 NYCRR 206.21(g) and CPLR 2211 for an order granting the State additional time to file its appraisal and expert reports in the above action. The motion was necessitated by the fact that the Court granted two previous extensions of time and court rules prohibit a further extension absent a motion.

In support of the motion defense counsel alleges that discovery revealed the action is more complex than an initial reading of the claim suggested. Counsel alleges that the pro se claimants seek damages for flooding of the subject property plus an additional award for the alleged de facto taking of a strip of land east of the permanent easement appropriated by the State which is the primary subject of this action. Counsel further alleges that discovery related problems which necessitated a motion to compel and a cross-motion for a protective order further complicated the proceeding and delayed the preparation and filing of the State's appraisal and expert reports. The discovery related motions were the subject of an order of the Court dated June 30, 2003 which permitted claimants to make a new and more detailed motion to compel responses to outstanding discovery demands and which denied the State's cross-motion as academic.

Claimants opposed the instant motion through the affidavit of Janet Roberts in which she alleges that the State fully appreciated the nature of the claim following the depositions of unspecified persons on October 8, 2002 and the State has not pursued the preparation of its appraisal with due diligence. Ms. Roberts also alleges that the defendant's lack of diligence is demonstrated by its use of an order to show cause on the motion rather than a timely made motion on notice, and that the excuses offered herein do not demonstrate unusual and substantial circumstances. Claimant further asserts that she and her husband will be prejudiced by the requested extension since work on this case has caused stress and anxiety and affected her health. She incorrectly avers that the requested extension to file defendant's appraisal goes beyond the scheduled trial date of August 14, 2003.

Section 206.21 (g) [3] of the Uniform Rules for the Court of Claims (22 NYCRR 206.21 (g)[3]) provides:
(3) An application for other or further relief from the requirements or consequences of this section also shall be made to the assigned judge by motion on notice showing unusual and substantial circumstances. However, any application for such relief made after the commencement of trial may be granted only upon a showing of extraordinary circumstances. The court in its discretion may grant the motion upon such terms and conditions as may be just.
In light of the Court's June 30, 2003 decision and order permitting claimants to make a new and more detailed motion to compel responses to their discovery demands within 60 days of service of that decision and order it is obvious that this case is not yet trial ready[1]. Accordingly, the Court finds that claimants will not be prejudiced by the State's requested extension of time to file its appraisal and expert reports on September 12, 2003. The Court in its discretion finds that the State has adequately demonstrated unusual and substantial circumstances justifying a final extension of the time to file its appraisal and expert reports.

The defendant's motion is granted and its time to file appraisal and expert reports is extended to September 12, 2003. It is further ordered that the time for filing a note of issue is extended until November 15, 2003.

August 15, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated June 16, 2003;
  2. Affidavit of Michael A. Sims sworn to June 16, 2003 with exhibits;
  3. Affidavit of Janet M. Roberts sworn to July 2, 2003.

[1]Discovery is not yet completed and no note of issue has yet been filed.