New York State Court of Claims

New York State Court of Claims
SALMON RUN v. STATE OF NEW YORK, # 2010-018-140, Claim No. 117627, 117628, 117629, 117630, 117631, Motion No. M-77745


Case information

UID: 2010-018-140
Claimant short name: SALMON RUN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117627, 117628, 117629, 117630, 117631
Motion number(s): M-77745
Cross-motion number(s):
Claimant's attorney: WHITEMAN OSTERMAN & HANNA LLP
By: Thomas A. Shepardson, Esquire
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Martin Rowley, Esquire
Third-party defendant's attorney:
Signature date: September 2, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant brings a motion pursuant to CPLR 3024 seeking to strike prejudicial matters contained in five claims and for an Order consolidating those five claims. Claimant does not oppose consolidation of the claims, however, it does oppose striking any asserted prejudicial matters.

Claimant has filed five separate claims for the partial appropriation of its property along with consequential damages. As part of each claim, Claimant provides that it entered into an Agreement for Advance Payment with Defendant and sets forth the amounts of the advance payments. Defendant argues, by this motion, that setting forth the amounts of each advance payment is prejudicial. Claimant, in opposition, argues that the amounts of the advance payments are relevant and are not precluded from inclusion in the claims by any law or case law.

When property is acquired by the power of eminent domain, the owner of the property is entitled to just compensation (NY Const, art I, 7; Eminent Domain Procedure Law 101). The condemnor is obligated to have the property appraised and shall make a written offer to the condemnee of the highest approved appraisal (Eminent Domain Procedure Law 303 and 304 [A]). The condemnee may accept the offer as payment in full or only as an advance payment and pursue just compensation in court (Eminent Domain Procedure Law 304). The condemnor's offer, accepted as an advance payment by a condemnee, is not binding as to the value of the property on either party at trial (see Brummer v State of New York, 25 AD2d 245; Lieberthal v State of New York, 22 AD2d 831). "The intent of this statute was that the State's position at trial was not to have been prejudiced by the tendering of an advance payment." (Cronk v State of New York, 100 Misc 2d 680, 685). The amount of the advance offer is not admissible at trial (see Brummer, 25 AD2d at 249-250). Even the appraisal upon which the advance payment is made is not normally admissible at trial, as it is subject to the qualified privilege of material prepared for litigation (see CMRC Corp. v State of New York, 270 AD2d 27; Sullivan v State of New York, 57 Misc 2d 308; Murphy v State of New York, 29 AD2d 81, 82; Lieberthal, 22 AD2d at 831; Cook v State of New York, 105 Misc 2d 1040; but see Matter of Carriage House Motor Inn v City of Watertown, 136 AD2d 895, affd 72 NY2d 990). In this context, setting forth the amounts of the advance payments in the claims may be prejudicial to the Defendant, as it is not an appropriate consideration before the Court at this juncture.

As for the consolidation of the claims, all five of the pending claims should be consolidated. The parties both agree that consolidation is appropriate and these claims all involve common questions of law.

Accordingly, based upon the foregoing, Defendant's motion is granted in its entirety. The Claimant is hereby directed to serve and file an Amended Claim for each claim with the advance payment amount expunged within 30 days of the filing date of this Decision and Order. The five Amended Claims shall be consolidated under Claim No. 117627. The Clerk of the Court is hereby directed to seal the original five claims filed on November 5, 2009.

Finally, to avoid even any question of prejudice, since the amount of the advance payments have been before the Court in the currently filed claims, I hereby recuse myself and request that this consolidated claim be reassigned to a different Judge.

September 2, 2010

Syracuse, New York


Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1) Notice of Motion.

2) Affirmation of Martin Rowley, Esquire, in support, with exhibit attached thereto.

3) Affidavit in Opposition of Thomas A. Shepardson, Esquire, sworn to March 1, 2010, with exhibits attached thereto.