New York State Court of Claims

New York State Court of Claims

JULTON REALTY v. THE STATE OF NEW YORK, #2006-033-228, Claim No. 112293, Motion Nos. M-71885, CM-71947


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
James J. Lack
Claimant’s attorney:
Siegel Fenchel & Peddy, P.C.By: Saul R. Fenchel, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for relocation expenses arising from the appropriation of property belonging to Julton Realty, LLC and Milton Abeles, Inc. (hereinafter "claimants"). The original appropriation took place on September 24, 2003, in Mineola, New York.

The appropriation was a total taking of claimants’ property and business located at 50 Roslyn Road, Mineola, New York. As a result of the appropriation, claimants had to relocate their business, a meat processing and distribution business. In order to move the business, claimants incurred expenses to move and ready the new location. Claimants state that these expenses amount to $1,602,715.11. Claimants move for summary judgment for these expenses.

Defendant opposes the motion for summary judgment and cross-moves to dismiss the claim[1]. The most relevant arguments that defendant makes are that the claim is untimely and claimants have failed to exhaust their administrative remedies. The Court denies the remainder of defendant’s arguments.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

From the evidence presented to the Court, it is clear that significant issues of fact exist in regard to the reasonableness and necessity of some of the expenses incurred. The only way to determine the outcome of this matter is to allow the parties to present their evidence at trial.

It is clear that claimants may bring an action for moving expenses separate and apart from its appropriation claims (Terranova v State of New York, 53 AD2d 1026). Claimants may seek the expenses by bringing an action in the Court of Claims or seeking them administratively (Terranova). In the current matter, claimants chose both avenues to recoup the moving and relocation expenses. Claimants began seeking the expenses through an exchange of letters. An examination of the parties’ papers show that each side claims the other dropped the ball in trying to determine these expenses. While this procedure was occurring, claimants filed the instant claim.

Since claimants have an election of remedies by seeking its expenses administratively or in the Court of Claims, defendant’s argument that claimants have failed to exhaust their administrative remedies is immaterial. As to the timeliness issue, both sides have valid points. Claimants’ expenses were known in August 2005. As such, the claim would fall under the six-month filing requirement of Court of Claims Act §10(4). However, if the Court were to dismiss the claim, claimants could finish the administrative procedure and file anew if the process was not satisfactory. Accordingly, the Court will deem the $93,000.00 offer in February 2006, as discussed in claimants’ papers, as the end of the administrative process. Claimants are now foreclosed from proceeding on two fronts and will continue solely in the Court of Claims. As such, the claim is found to be timely filed.

Based upon the foregoing, defendant’s cross-motion to dismiss and claimants’ motion for summary judgment are denied.

December 29, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on claimants’ motion and defendant’s cross-motion: Notice of Motion dated June 16, 2006 and filed June 19, 2006; Affirmation in Support of Motion for Summary Judgment of Saul R. Fenchel, Esq. with annexed Exhibits 1-2 dated June 16, 2006 and filed June 19, 2006; Affidavit in Support of Motion for Summary Judgment of Richard Abeles sworn to June 16, 2006 and filed June 19, 2006; Notice of Cross-Motion dated June 30, 2006 and filed July 3, 2006; Affirmation of J. Gardner Ryan, Esq. with annexed Exhibits A-C dated June 30, 2006 and filed July 3, 2006; Answering Affirmation of Saul R. Fenchel, Esq. with annexed Exhibits A-D dated August 23, 2006 and received August 25, 2006; Supplementary Affidavit of Richard Abeles sworn to August 23, 2006 and filed August 25, 2006; Affirmation of J. Gardner Ryan, Esq. dated September 7, 2006 and filed September 11, 2006; Reply Affirmation of Saul R. Fenchel, Esq. dated September 13, 2006 and filed September 14, 2006.