New York State Court of Claims

New York State Court of Claims

NORTHVILLE INDUSTRIES v. THE STATE OF NEW YORK, #2003-028-525, Claim No. 97489, Motion No. M-66000


The Court denied Claimant's EDPL 701 application as the award was not substantially in excess of the initial offer. The Court now denies Claimant's motion to reargue

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:
SIEGEL FENCHEL & PEDDY, P.C.BY: Saul R. Fenchel, Esq.
Defendant's attorney:
BY: Rose F. Lowe, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for leave to reargue and/or for reconsideration:

1) Notice of Motion filed October 31, 2002 with Supporting Affirmation of Saul R. Fenchel (Fenchel Affirmation) and Supporting Affidavit of Michael Haberman (Haberman Affidavit) and the annexed Exhibits 1-3.

2) Affirmation in Opposition of Assistant Attorney General Rose Farrell Lowe, (Lowe Affirmation), filed November 27, 2002.

3) Reply Affirmation of Saul R. Fenchel (Fenchel Reply) filed December 4, 2002.

Filed Papers: Decision of Sise, J., filed February 28, 2002; Judgment, entered

April 19, 2002. Decision and Order of Sise, J., filed October 2, 2002.

Claimant seeks leave to reargue and/or reconsideration of the Court's denial of its application for an additional allowance for actual and necessary costs, disbursements and expenses pursuant to EDPL § 701. The Defendant has opposed the application.

Following trial, a memorandum decision, filed February 28, 2002 awarded Claimant $547,083.00 with statutory interest thereon from the vesting date of November 21, 1994, to the date of decision herein and thereafter to the date of entry of judgment for the permanent appropriation. Thereafter, the Court denied Claimant's application for an additional allowance pursuant to EDPL § 701 holding that the award was not substantially in excess of the condemnor's initial offer. The Court found the "condemnor's initial offer" to be $458,000.00 and the award for the permanent taking was $547,083.00 a difference of $89,083.00, or not quite 20%.

Claimant timely seeks reargument premised upon "additional legal precedent" and "additional evidentiary documentation" (Fenchel Affirmation ¶ 3). Claimant's principal legal argument, which it is alleged the Court misapprehended, is that the computation of the differential between the "condemnor's initial offer" and the trial award for the taking "should include the interest factor" (Id. at ¶ 7). The net effect of which would be to create a greater difference, in excess of 20% (see Fenchel Affirmation 9), and thereby hurdle the substantially in excess requirement of EDPL § 701.

"A motion for reargument . . . is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" (Foley v Roche, 68 AD2d 558, 567; see CPLR 2221 [d]). Such motions are not perfunctorily granted and they are not intended to "afford an unsuccessful party successive opportunities to reargue issues previously [considered and] decided" (Matter of Mayer v National Arts Club, 192 AD2d 863, 865, lv denied 88 NY2d 802; see Foley v Roche, supra, at 567).

Here, upon a thorough review of Claimant's motion papers and the arguments presented in them, the Court finds no reason to revisit the prior decision[1]. In short, there is no indication that this Court ignored prevailing law or failed to address an issue raised by Claimant.

In light of the Court's holding it does not reach the Claimant's request for reconsideration (see, CPLR 2221 [e]) premised upon additional evidence submitted by Claimant in support of an award for appraisal fees.

Accordingly, Claimant's motion for leave to reargue is denied.

April 10, 2003
Albany, New York

Judge of the Court of Claims

[1] The Court notes parenthetically that none of the cases relied upon by Claimant include the interest on the award in determining the percentage difference (see, e.g., Fodera Enterprises v State of New York, Ct Cl, Read, J., UID #2001-001-087, Claim No. 88245, Motion No. M-63947, March 26, 2002 [the State's initial offer was $20,000, and the Court's award after trial, excluding interest, was $57,000 this discrepancy of nearly 300% "substantial" within the meaning of EDPL 701 [emphasis added]). Rather, the interest on the award is an appropriate add-on when the Court determines the amount of the attorney fee award.