New York State Court of Claims

New York State Court of Claims

DILAJ v. THE STATE OF NEW YORK, #2006-009-076, Claim No. 109189, Motion Nos. M-69488, CM-72373


Synopsis


Defendant’ s motion to dismiss was denied, and claimants’ cross-motion to strike affirmative defenses was granted.

Case Information

UID:
2006-009-076
Claimant(s):
IHOR DILAJ and CAYOCO, INC.
1 1.The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
DILAJ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109189
Motion number(s):
M-69488
Cross-motion number(s):
CM-72373
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
ROBERT L. JACOBSON, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 19, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a motion (M-69488) to dismiss this claim[2]. Claimants have


responded with a cross-motion (CM-72373) not only opposing the relief sought by defendant, but


also seeking an order striking the two affirmative defenses set forth in defendant’s Verified Answer.

The following papers were considered by the Court in connection with these motions:

Notice of Motion, Affirmation, with Exhibits (M-69488) 1,2

Notice of Cross-Motion, Affirmation, with Attachment (CM-72373) 3,4

Defendant has moved to dismiss this claim, contending that claimants have failed to state a cause of action, and additionally that the corporate claimant, CAYOCO, INC., lacks standing before the Court. In his affirmation in support, the Assistant Attorney General representing the State contends that the claim is jurisdictionally defective, since it fails to state the time and date of accrual of the claim, and that it also fails to comply with the Uniform Rules for the Court of Claims§ 206.6(b), which requires that the claim must contain a schedule detailing each and every item of damage claimed.

In support of its motion to dismiss, the State relies upon its verified answer, which contains two affirmative defenses. The first affirmative defense specifically raises the issue that the corporate claimant, CAYOCO, INC., lacks standing, due to the lack of legal representation when the claim was filed, as required by CPLR 321(a). The second affirmative defense alleges a lack of jurisdiction, contending that the claim was not served or filed within three years from the date of vesting of title as required by Court of Claims Act § 10(1).

With respect to the issue of standing, at the time this motion was originally scheduled to be heard, both claimants retained the services of Robert Louis Riley, Esq. to represent them in this claim, including defense of the State’s motion to dismiss. Mr. Riley, however, encountered certain personal and medical difficulties which interfered with his ability to properly represent the claimants, and attorney Robert L. Jacobson, Esq., has replaced Mr. Riley, and Mr. Jacobson is now listed as counsel for both Ihor Dilaj and CAYOCO, INC. in the records of this Court. Accordingly, that aspect of defendant’s motion seeking to dismiss this claim based upon a failure of the corporate claimant, CAYOCO, INC., to have legal representation has been rendered moot. Similarly, Mr. Jacobson’s representation of both claimants renders the first affirmative defense moot as well.

Defendant’s second affirmative defense (i.e., that the claim was not served and filed within three years from the date of vesting of title in the State of New York) is apparently based on the fact that claimants failed to state the time and date of accrual of their cause of action in their claim. Pursuant to EDPL § 402(A), in order to effect an acquisition of property by eminent domain, the State must file the taking map in the office of the condemning agency, the Office of the Secretary of State, and the office of the county clerk where the property is located. Within 90 days of filing of the map, the State must then serve upon the condemnee a notice of acquisition with a copy of the map (EDPL § 502[A]). Although title vests in the State at the time the map is filed in the Office of the County Clerk where the property is located, the claim itself accrues when the property owner is served with the notice of acquisition pursuant to EDPL § 502(A).

Therefore, not only does the State have actual notice of these essential dates (since it has the responsibility to both file the appropriation maps and serve the notice of appropriation upon the owner), the State also has the ultimate ability to determine when the claim actually accrues. The State, therefore is well aware of the date and time of accrual of an appropriation claim even before the claim is served and filed, and since the State cannot show any prejudice, an appropriation claim will therefore not be dismissed for failure to state the date and time when it accrued (Conklin v State of New York, 46 AD2d 936; affd 38 NY2d 726).

Additionally, in response to this motion (see Items 3,4), claimants’ attorney has attached a copy of an “Affidavit of Title” prepared by the State Department of Transportation, on which a date of appropriation is set forth as December 12, 2002. Since this is the date when the State considers that this claim accrued, the service and filing of this claim on April 15, 2004 occurred well within the three year period for commencing appropriation claims provided by Court of Claims Act § 10(1). The second affirmative defense set forth in defendant’s Verified Answer, therefore, must also be stricken.

Finally, defendant contends that claimants have failed to separately list and identify the damages incurred to each of them, since one of the claimants is the owner and lessor of the property (Ihor Dilaj), while the other claimant is a lessee of the property (CAYOCO, INC.). Identification of the damages allegedly suffered by each party, however, can best be addressed in the separate appraisal reports to be prepared by each party and eventually filed with the Clerk of the Court of Claims.

Due to the numerous extensions previously granted on the State’s motion, it has become necessary to grant an additional extension to provide the parties with sufficient time to obtain and file their respective appraisals. Accordingly, pursuant to § 206.21(g) of the Uniform Rules for the Court of Claims, the parties have until June 19, 2007 for the filing of their appraisals.

Based on the foregoing, it is

ORDERED, that Motion No. M-69488 is hereby DENIED, and it is further

ORDERED, that Cross-Motion No. CM-72373 is hereby GRANTED, to the extent that the two affirmative defenses set forth in defendant’s Verified Answer are hereby stricken; and it is further

ORDERED, that pursuant to 22 NYCRR § 206.21(g), both parties have an extension of time until June 19, 2007, for the filing of their appraisals.

December 19, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[2]. Defendant’s motion has been adjourned on numerous occasions at the request of claimants’ former counsel, and the Court acknowledges the cooperation and patience of defendant’s counsel in consenting to these requests.