New York State Court of Claims

New York State Court of Claims

ABC v. THE STATE OF NEW YORK, #2006-013-008, Claim No. 110331, Motion Nos. M-71042, M-71133


Synopsis



Case Information

UID:
2006-013-008
Claimant(s):
ABC, LLC
Claimant short name:
ABC
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110331
Motion number(s):
M-71042, M-71133
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
HARRIS BEACH, PLLC
BY: PHILIP G. SPELLANE, ESQ. andJAYME A. HURWITZ, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


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 its appraisal:

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 Annexed


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 taxpayers.

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, unequivocally:

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 appraisal.[1] 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 denied.

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 (g)(3)[2], with a required showing of unusual and substantial circumstances.

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.


March 1, 2006
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1] The relief sought in that motion included a stay of all proceedings but that determination would have been made only after the expiration of the filing deadline.
  2. [2] A motion pursuant to 22 NYCRR 206.21(g)(2) would be unavailing since, in addition to showing good cause, it must be made prior to the expiration of any prior extension.