4) Reply Affirmation of Reynolds E. Hahn, Esq., dated September 14, 2004. In
this appropriation claim, Defendant brings a motion to compel Claimant to
respond to Defendant's outstanding discovery demands. Defendant contends that
responses are needed by Defendant's expert for preparation of his appraisal of
the subject property. Defendant also requests that the Court suspend the
accrual of statutory interest on any award Claimant might ultimately receive in
this matter due to Claimant's alleged continued delay of disclosure in this
matter. Finally, Defendant seeks reimbursement from Claimant for costs and
expenses Defendant incurred when Claimant failed to appear at a scheduled
According to Defendant, the demands in question were served upon Claimant on
January 22, 2004 and, despite telephone calls and letters requesting compliance,
as well as a preliminary conference at which Claimant promised compliance,
Claimant has failed to respond to the demands. The demands in question are
Defendant's demand for a verified bill of particulars and a notice to
At the oral argument of this motion, I issued a decision relating to the demand
for the verified bill of particulars, directing Claimant to provide responses to
questions 23 through 28. Also at that time, Defendant indicated that, while
some of the requested documents had been provided, Claimant had yet to provide
certified income and expense statements for the subject property for the years
1999 to date. Claimant argues that it sent the requested income and expense
documents directly to Defendant's expert at or about the time this motion was
filed, but failed to copy Defendant's counsel in on that correspondence.
I find that Claimant has failed to adequately respond to Defendant's demands.
The income and expense statements provided to Defendant's expert are not
certified and do not cover the period from the beginning of 2002 to date.
Defendant has demonstrated the need for these documents in the preparation of
its appraisal in this matter.
With regard to Defendant's request for a suspension of pre-judgment interest, I
find that Claimant's conduct, at this point, is not so egregious as to warrant
such a sanction. This issue may be revisited in the future, however, if the
Court finds that further delays are attributable to Claimant.
With regard to Defendant's request for the costs and expenses incurred as a
result of Claimant's failure to appear at the scheduled deposition, I find that
Claimant has failed to offer any excuse for his failure to appear and that
Defendant is entitled to recover from Claimant the reasonable costs and expenses
incurred by Defendant as a result of this failure. Defendant, however, has not
submitted for review the actual costs and expenses incurred. Defendant is,
therefore, directed to submit an affidavit to the Court and opposing counsel,
documenting its costs and expenses. The amount of the award shall be determined
after review of Defendant's submission and any responding affidavit Claimant
cares to interpose.
Finally, I note that during oral argument, I granted Defendant's request for an
extension of time to file appraisals in this matter, and set the deadline of
January 15, 2005 from the bench. Now, as it appears that this short time span
is, perhaps, overly optimistic, I hearby extend the deadline for submission of
the parties appraisals to March 15, 2005.
Accordingly, based upon the papers submitted and upon oral argument on this
motion, it is hereby
ORDERED, that Claimant is directed to respond to items 23 through 28
inclusive of Defendant's demand for a verified bill of particulars dated January
22, 2004, and to provide certified income and expense statements covering the
period from February 13, 1999 to date within 30 days of the filed date of this
order; and it is further
ORDERED, that Defendant shall submit to the Court and opposing counsel
an affidavit setting forth its costs and expenses relating to the May 17, 2004
scheduled deposition of Claimant. Claimant shall have 7 days to respond to this
affidavit; and it is further
ORDERED, that Defendant's request for an extension of time to file its
appraisal in this matter is granted. The parties shall file their appraisals
with the clerk on or before March 15, 2005.