New York State Court of Claims

New York State Court of Claims

BENDERSON, et al v. THE STATE OF NEW YORK, #2007-037-005, Claim No. 111874, Motion Nos. M-72613, CM-72715


Synopsis


Defendant’s motions and Claimants’ cross-motions established good cause for an extension of time to file appraisals. The record did not, however, warrant suspension of interest.


Case Information

UID:
2007-037-005
Claimant(s):
RONALD BENDERSON AND DAVID H.
BALDAUF, AS TRUSTEES UNDER A TRUST AGREEMENT DATED SEPTEMBER 22, 1993, KNOWN AS THE RANDALL BENDERSON 1993-1 TRUST, AND RB-3 ASSOCIATES
8441 Cooper Creek Boulevard
University Park, Florida 34201
Claimant short name:
BENDERSON, et al
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111874
Motion number(s):
M-72613
Cross-motion number(s):
CM-72715
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Harold M. Halpern, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 15, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2007-037-006, 2007-037-007, 2007-037-008


Decision

The following were read and considered with respect to Defendant’s motions (M-72610,


M-72612, M-72613 and M-72614) for an extension of time to file appraisals and for suspension of


interest, and Claimants’ cross-motions (CM- 72710, CM-72711, CM-72712 and CM-72715) for an


extension of time to file appraisals:


Claim no. 111874

1. Defendant’s notice of motion (M-72613) and supporting affidavit of Assistant

Attorney General William D. Lonergan sworn to December 1, 2006, with annexed Exhibits A-K;

2. Claimants’ notice of cross-motion (CM-72715) and affirmation of Harold M.

Halpern, Esq. in opposition to Defendant’s motion and in support of Claimants’cross-motion, dated December 21, 2006, with annexed Exhibits 1-22;

3. Affidavit of Assistant Attorney General William D. Lonergan in further support of

Defendant’s motion and in response to Claimants’ cross-motion, sworn to January 2, 2007, with annexed Exhibit A.


Filed papers: Claim filed January 23, 2006.


Claim no. 111875

1. Defendant’s notice of motion (M-72614) and supporting affidavit of Assistant

Attorney General William D. Lonergan sworn to December 1, 2006, with annexed Exhibits A-K;

2. Claimant’s notice of cross-motion (CM-72711) and affirmation of Harold M.

Halpern, Esq. in opposition to Defendant’s motion and in support of Claimant’s cross-motion, dated December 21, 2006, with annexed Exhibits 1-22;

3. Affidavit of Assistant Attorney General William D. Lonergan in further support of

Defendant’s motion and in response to Claimant’s cross-motion, sworn to January 2, 2007, with annexed Exhibit A.


Filed papers: Claim filed January 23, 2006.


Claim no. 111876

1. Defendant’s notice of motion (M-72612) and supporting affidavit of Assistant

Attorney General William D. Lonergan sworn to December 1, 2006, with annexed Exhibits A-K;

2. Claimants’ notice of cross-motion (CM-72712) and affirmation of Harold M.

Halpern, Esq. in opposition to Defendant’s motion and in support of Claimants’ cross-motion, dated December 21, 2006, with annexed Exhibits 1-22;

3. Affidavit of Assistant Attorney General William D. Lonergan in further support of

Defendant’s motion and in response to Claimants’ cross-motion, sworn to January 2, 2007, with annexed Exhibit A.


Filed papers: Claim filed January 23, 2006.


Claim no. 111877

1. Defendant’s notice of motion (M-72610) and supporting affidavit of Assistant

Attorney General William D. Lonergan sworn to December 1, 2006, with annexed Exhibits A-K;

2. Claimant’s notice of cross-motion (CM-72710) and affirmation of Harold M. Halpern,

Esq. in opposition to Defendant’s motion and in support of Claimant’s cross-motion, dated December 21, 2006, with annexed Exhibits 1-22;

3. Affidavit of Assistant Attorney General William D. Lonergan in further support of

Defendant’s motion and in response to Claimant’s cross-motion, sworn to January 2, 2007, with annexed Exhibit A.


Filed papers: Claim filed January 23, 2006.

Decision

Four separate appropriation claims were filed on January 23, 2006 (claim nos. 111874, 111875, 111876 and111877),[1] and assigned to the Court. All of these claims arise out of the same New York State Department of Transportation (DOT) project and involve the same parcel of land. While the named Claimants are slightly different on some of these claims, all of the Claimants and the Defendant on each of the claims are represented by the same counsel. Identical motions (M-72610, M-72612, M-72613 and M-72614) for an extension of time to file an appraisal and for suspension of interest were filed by Defendant’s counsel in each of these claims. Counsel for all of the Claimants then cross-moved in each claim for an extension of time to file their appraisals (CM-72710, CM-72711, CM-72712 and CM-72715). Because these motions and cross-motions are identical and seek the same relief, the Court will address them in this one decision.

The appraisals in each of these claims were initially due to be filed in July of 2006. Before this deadline expired, the parties entered into a stipulation extending the time to file appraisals to January 21, 2007. On June 14, 2006, at about the same time these stipulations were filed, Defendant served its notice to produce, its demand for witnesses and its demand pursuant to CPLR 3101 (d) in each of the separate appropriation claims. On June 20, 2006, Claimants’ counsel sent a fax to a DOT representative advising that he had a limited appraisal for each of the claims for the purpose of continuing settlement negotiations (Claimants’ Exhibit 6), and sent a letter to Defendant’s counsel requesting a general extension of time to respond to the discovery demands served in each of the claims pending further settlement negotiations (Claimants’ Exhibit 7). By letter dated June 23, 2006, Defendant’s counsel agreed to extend the “statutory period within which to respond” for an additional 30 days and agreed to discuss a further extension (Defendant’s Exhibit B). In July, August and September of 2006, without any further discussions between counsel regarding Defendant’s discovery demands, DOT representatives and Claimants’ counsel exchanged certain information and met as part of their continuing efforts to negotiate settlements of these claims (see Claimants’ Exhibits 10, 11, 12, 13, ). A further settlement meeting was scheduled for October 17, 2006. Before this meeting could be held, Defendant’s counsel wrote to Claimants’ counsel requesting immediate responses to the outstanding discovery demands in each of these claims (Defendant’s Exhibit C). Claimants’ counsel advised Defendant’s counsel of the forthcoming settlement conference and requested an additional 30-day extension of time after the conference to respond to the outstanding discovery demands (Claimants’ Exhibit 16). By letter dated October 16, 2006, Defendant’s counsel reminded Claimants’ counsel that four months had passed since service of the discovery demands and requested immediate responses (Defendant’s Exhibit E).[2] Claimants’ counsel responded that he was prepared to recommend to his client that they accept the settlement offered on one of the claims (Defendant’s Exhibit G). Defendant’s counsel again demanded immediate responses to the outstanding discovery demands which were finally provided by Claimants in November of 2006 (Claimants’ Exhibit 22).

Because Defendant’s motions and Claimants’ cross-motions for an extension of time to file their respective appraisals were made before the previous deadline of January 21, 2007 had expired, Rule 206.21 (g) (2) of the Uniform Rules for the Court of Claims (22 NYCRR § 206.21 [g] [2]) applies and each party bears the burden of proving that good cause exists for the requested extension (Kalodimos v State of New York, Ct Cl, April 20, 2001, Sise, J., Claim No. 92102, Motion No. M-62959, UID # 2001-028-0530).[3] The Court is vested with broad discretion in determining whether to grant the requested extensions (see generally Matter of Town of Guilderland [Pietrosanto], 244 AD2d 604 [1997]). On this record, the Court is satisfied that it would be nearly impossible for Defendant’s expert to timely prepare the appraisals because responses to the outstanding discovery demands were not proffered until November of 2006. The Court is also satisfied, however, that Claimants’ counsel and the DOT continued to negotiate settlement of these claims through the middle of October and that once Claimants’ counsel realized that the DOT did not intend to negotiate further, promptly proffered discovery responses. The Court finds that the Defendant and the Claimants have established good cause for a further extension and concludes that the interest of justice would be best served by granting Defendant’s motions (M-72610, M-72612, M-72613 and M-72614) and Claimants’ cross-motions (CM-72710, CM-72711, CM-72712 and CM-72715) for an extension of time to file their respective appraisals in each of these claims to June 21, 2007.

Finally, Defendant’s request made in each of its motions for suspension of interest is denied. The Court may, however, reconsider the suspension of interest at a later date if further extensions of time to file appraisals become necessary.



February 15, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Originally, five separate appropriation claims were filed on January 23, 2006. Recently, however, the fifth claim no. 111878 was discontinued.
[2]. The October 16, 2006 letter of defendant’s counsel also reminded Claimants’ counsel of the settlement package which Claimants had previously rejected and listed the amounts offered by the DOT to settle each of these claims. All references to the proposed settlement amounts were redacted by Defendant from Defendant’s Exhibit E in each of its motions. Claimants’ counsel did not, however, redact the settlement figures from Claimants’ Exhibit 17, a duplicate copy of this October 16, 2006 letter, or from Claimants’ Exhibit 20, which also mentioned the total proposed settlement amount offered by the DOT. Because the Court is the trier of fact, it would be inappropriate for the Court to see the proposed settlement figures. Fortunately, the Court was advised of the inclusion of these figures and had each copy of Claimants’ Exhibit 17 and Claimants’ Exhibit 20 redacted before reviewing the motion or cross-motion papers.
[3]. This and other unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.