New York State Court of Claims

New York State Court of Claims

FARMER v. THE STATE OF NEW YORK, #2005-019-550, Claim No. 103336, Motion No. M-70065


Synopsis


Claimants' motion for order modifying this court's prior Decision is granted to the extent of modifying this court's prior Decision by directing the entry of a Supplemental Judgment in the amount of $15,500 in favor of claimants as a cost to cure.

Case Information

UID:
2005-019-550
Claimant(s):
GEORGE E. FARMER and JOAN A. FARMER
Claimant short name:
FARMER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103336
Motion number(s):
M-70065
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DE FILIPPO & PROUDFOOTBY: Frederick J. DeFilippo, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 19, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move for an order modifying this court's prior Decision dated March 28, 2003 and filed April 21, 2003 and the Judgment entered on June 6, 2003 in the amount of $39,000 by directing the entry of a Supplemental Judgment awarding claimants an additional $15,500 as a cost to cure. The State of New York (hereinafter "State") consents to the relief requested in said motion. The stipulation of counsel was placed on the record on June 8, 2005.

By way of this court's prior Decision, claimants were awarded the sum of $39,000 for damages resulting from the appropriation on July 18, 2000 of premises situate in the Town of Southport, County of Chemung, State of New York, described in Map No. 3, Parcel No. 6 for a proceeding entitled "Elmira Arterial to S.H. No. 13, Pt. 2." (Farmer v State of New York, Ct Cl, March 28, 2003, Lebous, J., Claim No. 103336).


As part of said Decision, the court stated as follows:
[i]t is also understood by the Court that the parties will negotiate a permanent unrestricted easement for the Claimants to take water from Seeley Creek at an appropriate location within the boundaries of Parcel No. 6 on Map No. 3 for lawful use upon their remaining lands. Again this easement is to be upon such additional terms and conditions as are agreeable to all of the parties, and the Court anticipates the same shall be executed, acknowledged and delivered to the Claimants in recordable form within 120 days from the filing date of this Decision.

(Decision, p 5).



The parties now agree that it is necessary for the claimants to purchase and install a pump and pipeline in order to obtain water from the creek to their remaining land at a cost to cure of an additional $15,500. The parties further agree that the pump, pipeline, and easement, will then allow claimants to obtain water from the creek as they did prior to the taking. As such, the parties placed a stipulation on the record agreeing as follows:


Claimants are entitled to an additional $15,500 as a cost to cure without interest provided claimants are in receipt of payment within sixty (60) days of the entry of this Decision and Order, otherwise, interest shall be paid on this additional sum from the date of this Decision and Order pursuant to CPLR 5001, 5002, and 5003. Further, the parties agreed that the State will execute, acknowledge, and deliver said easement and map referenced as Map 28C, Parcels 36 & 38, within thirty (30) days from June 8, 2005.


In view of the foregoing, it is ORDERED, that claimants' motion, Motion No. M-70065, is GRANTED to the extent of modifying this court's prior Decision dated March 28, 2003 and filed April 21, 2003 by directing the entry of a Supplemental Judgment in the additional amount of $15,500 in favor of claimants as a cost to cure in accordance with the terms herein set forth.

The award to claimants herein is exclusive of the claims, if any, of persons other than owners of the appropriated property, their tenants, mortgagees or lienors having any rights or interests in any stream, lake, drainage, irrigation ditch or channel, street, road, highway or public or private right-of-way or the bed thereof within the limits of the appropriated properties or contiguous thereto; and it is exclusive also of claims, if any, for the value of or damage to easements or appurtenant facilities for the construction, operation or maintenance of publically owned or public service electric, telephone, telegraph, pipes, water, sewer, or railroad lines.


ENTER SUPPLEMENTAL JUDGMENT ACCORDINGLY.


July 19, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. DECISION, Lebous, J., Claim No. 103336, filed April 21, 2003.
  2. Notice of Motion No. M-70065, dated April 19, 2005, and filed April 21, 2005.
  3. Affirmation of Frederick J. DeFilippo, Esq., in support of motion, dated April 19, 2005, with attached exhibits.
  4. Affirmation of Joseph F. Romani, AAG, in support of motion, dated June 2, 2005, and filed June 6, 2005, with attached exhibits.