New York State Court of Claims

New York State Court of Claims

LaPIETRA v. THE STATE OF NEW YORK, #2007-044-511, Claim No. 112057, Motion No. M-72059


Eminent domain claim dismissed without prejudice due to insufficient factual allegations regarding both what property was taken, if any, and whether the claim was for unsuitable access or interference with access.

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):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a motel and restaurant owner, commenced this action seeking recovery for loss of business and possibly loss of property allegedly caused by defendant’s reconstruction of State Route 7 in Cobleskill, Schoharie County. Defendant answered and asserted affirmative defenses including the untimely filing and service of the claim and failure to particularize the State’s conduct. Defendant moves to dismiss the claim as untimely, or in the alternative, for claimant’s failure to comply with Eminent Domain Procedure Law § 504. Claimant opposes the motion.

Claimant filed a “petition” which was assigned Claim No. 112057. In the petition, claimant alleges that the construction on State Route 7 affected the general flow of traffic, that her driveways were closed on several occasions and that electricity, sewer, and water services to her businesses were interrupted. Claimant also alleges that barriers were erected in the roadway and that the entrance/exit ramps to her property were torn up, both situations which caused difficulty in entering and exiting the property. Claimant alleges that her restaurant had previously averaged a gross income of $10,000 per week, but once construction began, the restaurant's gross dropped to $2,500 per week. Claimant also claims that between April 2005 and October 2005 her motel business’s income had decreased by 25%. Claimant specifically requested that the Court treat the petition as a small claims action under “Section 601 of the Human [sic] Domain Procedure Law” and she seeks damages of $25,000.

In opposition to defendant’s motion to dismiss, claimant provides the affidavit of Robert LaPietra, her husband. LaPietra avers that he spoke with Assistant Attorney General Gary Sissloge during the reconstruction period, and Sissloge advised that claims for less than $25,000 could be made in a small claim procedure under the EDPL. LaPietra states that claimant filed this claim believing the small claims procedure would be quicker and less costly than a formal claim against defendant.

EDPL 601 (A) provides that “[w]hen the total compensation demanded by all condemnees having an interest in a particular property being acquired is twenty-five thousand dollars or less . . . a condemnee may, within the time prescribed by [EDPL 503] file a claim with the clerk of the court having jurisdiction over the acquisition, and a copy of said claim upon the chief legal officer of the condemnor”. Importantly, the contents of the claim must include the name and address of the condemnee, reasonable identification of the affected property by reference to the acquisition map or otherwise, the claimant’s interest in the property, and a general statement of the nature and type of damages claimed (EDPL 504).

To the extent that claimant attempts to bring a cause of action under the Eminent Domain Procedure Law, this claim is clearly insufficient. Claimant’s general allegation that the claim is for “loss of property” is conclusory in nature, and is unclear what property - if any - was actually appropriated. The claim contains no address for the property allegedly affected, although it does make reference to “Howes Cave, Cobleskill project, S.H. #5286 . . . Map No. #34, Parcel #95.” However, a copy of the referenced document is not included and it is not clear whether it is an acquisition or appropriation map. In addition, claimant has failed to set forth any factual allegations which would support a finding that the project - whether that be whatever taking may have occurred or the construction itself - resulted in unsuitable access to the remaining property, such that consequential damages would be available (see LaBriola v State of New York, 36 NY2d 328, 332 [1975]; Priestly v State of New York, 23 NY2d 152, 155 [1968]; see also Landsman v State of New York, 249 AD2d 822 [1998], lv dismissed and denied 92 NY2d 943 [1998]; Rider v State of New York, 192 AD2d 983, 985 [1993]).[1]

In general, mere inconvenience with regard to access during construction, such as a temporary obstruction, is not compensable (Moore v State of New York, Ct Cl, Sept. 7, 2000, Hanifin, J., Claim No. 98464, [UID # 2000-004-007]). However, if the inconvenience arises from unreasonable, unnecessary, arbitrary or capricious acts or conduct of one in charge of the construction, the abutting landowner may have a right of action sounding in negligence for damages resulting from such interference with access to the property (Welbilt Corp. v State of New York, 80 Misc 2d 439 [1975]). Nonetheless, this Court cannot ascertain whether the instant claim is for an actual taking of property, or unsuitable access to the property, or interference with the use of the property. As a result, the claim is deficient under both EDPL 504 and Court of Claims Act § 11.

Further, to the extent that claimant may be asserting a cause of action under a theory of negligence, it is untimely. Based upon claimant’s allegations, this claim accrued at the latest on October 31, 2005. As a result, either a claim must have been filed and served, or a notice of intention to file a claim must have been served, on or before January 30, 2006 (Court of Claims Act § 10 [3]).[2] Because this claim was both filed and served on March 8, 2006, any cause of action sounding in negligence is consequently untimely.[3]

Accordingly, Claim No. 112057 is dismissed in its entirety, without prejudice.

February 8, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion to dismiss the claim:

(1) Notice of Motion filed on July 24, 2006; Affirmation of Joseph F. Romani, AAG, dated July 20, 2006, and attached Exhibits A and B; Memorandum of Law dated July 20, 2006.

(2) Affidavit of Robert LaPietra sworn to on October 25, 2006; Affidavit of Edward Wildove, Esq., sworn to on December 8, 2006, in opposition to the motion.

Filed papers: “Petition” filed on March 8, 2006; Verified Answer filed on April 3, 2006.

[1]. It is well-settled that damages resulting from circuity of access or from lack of traffic due to roadway relocation are normally not compensable (Selig v State of New York, 10 NY2d 34, 39 [1961]; LaBriola v State of New York, supra).
[2]. Although January 29, 2006 was the 90th day after accrual, because it was a Sunday, claimant had until the next business day to file and serve the claim (see General Construction Law § 25-a).
[3]. Claimant is not necessarily without a remedy. If a taking did in fact occur, it appears that there is sufficient time in which to file a claim based upon the appropriation (see EDPL 503 [A]; Court of Claims Act § 10 [1]). Additionally, should the facts support a cause of action in negligence or interference with property, claimant may avail herself of a motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6).