Claimant's motion for an granting leave to file an engineering report and to file an amended appraisal report in an appropriation case.
|Claimant(s):||KATSAROS BROTHERS REALTY, LLC|
|Claimant short name:||KATSAROS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Flower, Medalie & Markowitz, Esqs.
By: Edward Flower, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: Christopher M. Gatto, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 17, 2018|
|See also (multicaptioned case)|
The following papers were read and considered on this motion: Claimant's Notice of Motion; Claimant's Affirmation in Support with annexed Exhibits A-C; Defendant's Affirmation in Opposition with annexed Exhibits A-F; and Claimant's Reply Affirmation.
Claimant, Katsaros Brothers Realty, LLC, has brought this motion seeking an order granting leave to file an engineering report and to file an amended appraisal report. Defendant, State of New York, opposes the motion on the grounds that the reports raise damages due to flooding which were not mentioned in the original claim. Defendant argues that this omission constitutes a jurisdictional defect pursuant to Court of Claims Act § 11 (b). Additionally, defendant puts forth that the flooding allegations sound in tort and should more appropriately have been brought pursuant to Court of Claims Act 10 (3). Lastly, defendant states that claimant has failed to establish unusual and substantial circumstances pursuant to 22 NYCRR § 206.21 (h) (3).
The underlying claim in this matter, filed May 5, 2014, concerns a permanent and temporary appropriation by defendant of land and improvements. The State made a parcel appropriation of 662 square feet in fee together with a 1,238 square foot temporary easement on March 13, 2014.
The Uniform Rules for the Court of Claims, 22 NYCRR 206.21, state that the parties are required to file with the Clerk of the Court the appraisal of each appraiser as well as the report of any other expert whose testimony is intended to be relied upon at trial within six months from the date of completion of filing and service of a claim. The rules also prescribe that a six-month extension may be requested by letter application. In the instant matter, the Court granted claimant's request for a six-month extension of time until May 5, 2015. Thereafter, claimant requested an extension due to an upcoming surgery and so that his appraiser could reflect the respective interests of both the owner and the tenant. The Court granted claimant's request for an extension of time until February 5, 2016 with a so-ordered stipulation. Defendant then filed its appraisal and engineering reports with the Court on February 2, 2016.
In a Decision and Order filed August 2, 2016, this Court granted claimant's motion which sought, inter alia, additional time within which to file and exchange expert reports in this matter. Claimant was directed to file its expert reports within three months of August 2, 2016, the date the Decision and Order was filed. Claimant filed its appraisal report with the Clerk of the Court of Claims on November 1, 2016 and thereafter filed an amendment to its appraisal on January 3, 2017. Defendant then filed a rebuttal appraisal to claimant's appraisal on February 15, 2017. A trial of this matter was scheduled for April 25, 2017.
On January 10, 2017, claimant's counsel informed defendant that his client had complained of a grade change on the subject property which allegedly created flooding on the subject property. Claimant's counsel requested a copy of available "as built" construction plans. On January 31, 2017, the plans were provided to claimant's counsel which did not reference a change in grade. After unsuccessful settlement negotiations the present motion was filed wherein claimant seeks leave to file an engineering report and to file an amended appraisal report due to flooding damage allegedly due to a grade change on claimant's property.
22 NYCRR § 206.21 (h) (3) states that:
"[a]n application for other or further relief from the requirements or consequences of this section also shall be made to the assigned judge by motion on notice showing unusual and substantial circumstances. However, any application for such relief made after the commencement of trial may be granted only upon a showing of extraordinary circumstances. The court in its discretion may grant the motion upon such terms and conditions as may be just."
Claimant has been granted numerous extensions of time ending on November 2, 2016 to file expert reports in this case. The Court finds that claimant has failed to establish unusual and substantial circumstances which occurred after that deadline which would satisfy the requirements of 22 NYCRR § 206.21 (h) (3) (Dufel v State of N.Y., N.Y. State Thruway Auth., 187 AD2d 792 [3d Dept 1992]).
Therefore, for the foregoing reasons, claimant's motion is denied.
January 17, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims