New York State Court of Claims

New York State Court of Claims

WENDY'S OF ROCHESTER v. THE STATE OF NEW YORK, #2004-031-155, Claim No. 107567, Motion No. M-69034


Synopsis


Defendant's motion to compel disclosure, for sanctions, for suspension of statutory interest, and an extension of time to file its appraisal is granted in part

Case Information

UID:
2004-031-155
Claimant(s):
WENDY'S RESTAURANT OF ROCHESTER, INC.
Claimant short name:
WENDY'S OF ROCHESTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107567
Motion number(s):
M-69034
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
McCONVILLE, CONSIDINE, COOMAN & MORIN, P.C.BY: JASON S. DIPONZIO, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 18, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read on motion by Defendant for an order compelling disclosure from Claimant, sanctions and suspension of statutory interest:
1) Defendant's Notice of Motion, filed September 7, 2004;
2) Affirmation of Reynolds E. Hahn, Esq., dated September 2, 2004, with attached exhibits;
3) Affidavit of Jason S. DiPonzio, Esq., sworn to September 8, 2004 with attached exhibits;
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 deposition.

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 produce.

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.

November 18, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims