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 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
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
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.
.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.