On January 18, 2006, the following papers were read on motions by Defendant for
an order of preclusion, suspension of interest and an extension of time to file
Notice of Motion (M-71042), Affirmation and Exhibits Annexed
Notice of Motion (M-71133), Affirmation and Exhibit Annexed
Claimant's Reply Affidavit dated January 11, 2006
Defendant's Reply Affirmation dated January 13, 2006
Claimant's Supplemental Affidavit dated January 17, 2006, with Exhibit
Filed Papers: Amended Claim
Upon the foregoing papers, these motions are granted to the extent noted.
There are two motions before the Court. Motion No. M-71042 seeks an order
directing Claimant to provide (1) a bill of particulars or be precluded from
offering evidence at trial of any matter demanded in the Defendant's demand for
such bill dated February 15, 2005; (2) a response to Defendant's notice to
produce or be precluded from offering evidence at trial of any matter demanded
in the Defendant's demand in such notice to produce, also dated February 15,
2005; (3) a stay of this action until there is compliance with the above, and
(4) a suspension of interest for a period of time. In Motion No. M-71133,
brought on by order to show cause, Defendant seeks an extension of time to file
its appraisal for six months from January 10, 2006 until July 10, 2006.
The Defendant recites a chronology that is not disputed. On February 15, 2005
it served Claimant with its demand for a bill of particulars and other demands
for disclosure and a notice to produce (Exhibit A, M-71042)). Defendant
received no papers.
On June 28, 2005 it sent a letter to Claimant (Exhibit B, M-71042) noting that
it had received no response, no request for an extension of time, or any
objection to said demands, and requested disclosure within 20 days of said
letter. Defendant received no papers.
On October 13, 2005, Defendant sought a conference to resolve the outstanding
demands, and on November 1, 2005, I directed the Defendant to bring a motion for
relief if Claimant did not respond to said demands by December 1, 2005.
Defendant received no papers.
Defendant duly brought its motion. This time, Claimant responded. Its excuse
for the failure to comply is inadequate. Claimant discusses difficulty with one
of its tenants with respect to its commercial lease and settlement negotiations
it has engaged in with said tenant, and that until it recently (late December
2005) reached a settlement with tenant, it was simply unable to effect a final
settlement of this matter with the New York State Department of Transportation
(DOT). Claimant advised that it hoped that a release would be executed shortly
by said tenant, which apparently was the only impediment to Claimant's receipt
of an advance payment from the Defendant.
The closest thing to an excuse for the delay in responding to the demands was
that Claimant's now successful negotiations with its tenant caused a "delay in
responding to Defendant's discovery demands." Claimant regrets the delay, and
now is willing and able to serve the bill of particulars and respond to the
other discovery demands.
Contrary to Claimant's arguments that a suspension of interest is a draconian
measure, I observe that the entire delay here was solely the result of
Claimant's settlement negotiations with one of its tenants. In my thinking, if
Claimant intended to pursue this litigation, it needed to respond to Defendant's
demands, irrespective of resolution of its own dispute with its tenant. I fail
to see how a protracted dispute between Claimant and one of its tenants should
force the Defendant to pay 9% annual interest while that dispute awaited
resolution. This is not a burden that should be borne by the Defendant or the
Addressing Defendant's Motion No. M-71133, brought on by Order to Show Cause
which I signed on January 3, 2006, Defendant seeks an extension of time for it
to file its appraisal in this matter, from January 10, 2006 to July 10, 2006.
In that motion the Defendant noted that the time to file appraisals in this
matter expired on January 10, 2006. That extended deadline was granted in my
letter dated June 20, 2005, upon the Defendant's request, and noted that that
extension applied to all parties. My letter went on to say,
Should additional extensions be required by any party, a formal motion may be
made to me as the assigned judge; or, alternatively, a stipulation signed by the
parties may be submitted to me. All procedures herein shall be in accordance
with Rule 206.21.(g) of the Uniform Rules for the Court of Claims.
Obviously, no stipulation was submitted, and in this motion the Defendant
timely sought an additional period of time to file its appraisal, noting that
the return date of Motion No. M-71042 was after the expiration date for the
filing of appraisals and that it wished to avoid default in not filing its
In its reply, Claimant misstates
the relief sought by Defendant in this motion. The Defendant did not seek to
extend "the parties' time to file appraisal reports" but rather sought only to
extend the time for the Defendant to do so. Claimant suggests that it joins the
request to afford "both parties adequate time in which to conduct discovery and
prepare trial-ready appraisal reports."
None of the excuses or explanations proffered by Claimant in its initial reply
addresses just what discovery it has sought or which it needs in order to
prepare its trial appraisal, nor does it give any excuse for its failure to have
prepared its appraisal by January 10, 2006 or to have timely sought an extension
of time prior to the expiration of that deadline. The Defendant has articulated
the reason for its need for an extension of time, the need for the response to
its notice to produce, something solely within the control of the Claimant.
Claimant's supplemental affidavit notes that it was under the premise (albeit
mistaken) that the Defendant's order to show cause would be applicable to all
appraisal filing deadlines and therefore "joined" in the application. Had it
realized that the relief sought did not include the Claimant, a cross-motion
seeking such relief would have been brought.
Claimant wishes me to consider its "joined" request timely because the
Defendant's order to show cause was filed prior to the expiration of the
appraisal deadline. In essence, Claimant seeks to have its "joinder"
application, contained in its January 11, 2006 affidavit in opposition to both
motions herein, incorporated nunc pro tunc. That request must be
Claimant has made several erroneous assumptions, most egregiously assuming that
Defendant's order to show cause included the Claimant. Even Defendant's first
request for an extension of time, contained in its June 14, 2005 letter pursuant
to Rule 206.21 (g)(1), only sought such relief for itself. Pursuant to that
rule, I granted the extension and, sua sponte
, made it applicable to both
parties. Quite frankly, other than filing its amended claim, Claimant has done
absolutely nothing to further this litigation as every request for an extension
of time, and every motion has been made solely by the Defendant. While Claimant
represents that it has been busily engaged in settlement negotiations with DOT
and encountered some difficulties with one tenant, that only addresses an
advance payment and has no impact on this litigation which has been largely
ignored since the amended claim was filed. Accordingly, Claimant's belated and
untimely request is denied. If Claimant wishes similar relief, it will have to
bring a motion of its own, pursuant to Rule 206.21
, with a required showing of unusual and
Accordingly, Motion No. M-71042 is granted to the extent that Claimant shall
have 45 days from service of a file-stamped copy of this order to serve its
verified bill of particulars and responses to Defendant's notice to produce, or
be precluded from offering evidence at the trial herein of any material demanded
in Defendant's demand for a bill of particulars or the said notice to produce
dated February 15, 2005, and it is further
Ordered that interest shall be suspended from December 1, 2005, until six
months subsequent to Claimant's response to Defendant's notice to produce.
Similarly, Motion No. M-71133 is granted and the Defendant shall have until
July 10, 2006 to file its appraisal.