Fishpond Constr., LLC v State of New York

[*1] Fishpond Constr., LLC v State of New York 2012 NY Slip Op 52489(U) Decided on March 30, 2012 Ct Cl Ferreira, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 30, 2012
Ct Cl

Fishpond Construction, LLC, Claimant,

against

State of New York, Defendant.



115972



For Claimant:

Flower, Medalie & Markowitz

By: Edward Flower, Esq.

For Defendant:

Hon. Eric T. Schneiderman

Attorney General of the State of New York

By: Michael A. Sims

Assistant Attorney General

James H. Ferreira, J.

This is a claim for just compensation as the result of the appropriation of property belonging to Fishpond Construction, LLC (hereinafter "claimant") by the State of New York (hereinafter "defendant"). Title to the property vested in defendant on June 13, 2008. The property is located in the Town of Brookhaven, County of Suffolk, New York.

Claimant filed its claim on October 20, 2008. Thereafter, numerous extensions of time to file expert reports were requested by and stipulated to by the parties. Defendant filed its appraisal [*2]with the Clerk's office on July 22, 2010. Claimant filed its appraisal, which included an engineer's report, on March 31, 2011. The parties' appraisals were exchanged on March 31, 2011. On April 29, 2011, defendant filed an engineer's report in rebuttal to claimant's engineer's report. The defendant did not originally file an engineer's report. On April 28, 2011, claimant filed a rebuttal to defendant's appraisal. On May 3, 2011, the parties' rebuttal reports were exchanged.

Claimant now moves this Court for leave to file a "substitute" appraisal and a "substitute" engineer's report (Notice of Motion, at 1). Claimant asks that defendant also be allowed to file substitute expert reports and consents to allow defendant to make use of claimant's original reports. The basis for claimant's request is that defendant's rebuttal engineering report called counsel's attention to the fact that both of his experts had overlooked a fact in rendering their original reports, namely that, at the time the subject property was granted its zoning classification, "a declaration of covenants and restrictions was entered into which required that upon making application for a site plan approval that would result in actual construction upon the property the property owner would be required to dedicate five (5) feet along the closed Webster Avenue street frontage and a fifty (50) foot corner radius to the Town of Brookhaven" (Claimant's Affirmation in Support, at 2). Claimant posits that granting the request would be consistent with EDPL 301, which requires that all parties engage in a search for just compensation. In addition, claimant avers that the new appraisal "does not in any way increase the damages claimed over those claimed in the original appraisal but bases those damages more realistically upon the type of development upon the subject property which would occur given the required dedications" (Claimant's Affirmation in Support, at 2-3).

Defendant opposes the motion, arguing that there is no surprise to claimant concerning the covenants and restrictions.[FN1] Defendant refers to claimant's rebuttal to defendant's appraisal, wherein claimant's appraiser specifically mentioned the covenants and restrictions and indicated that they would not change the values in claimant's original appraisal. Defendant also argues that claimant has failed to show unusual or substantial circumstances justifying the relief sought, as required by [*3]the Uniform Rules for the Court of Claims.[FN2]

The Uniform Rules for the Court of Claims outline rules for the filing of appraisals and expert reports in appropriation claims (see generally 22 NYCRR 206.21). In relevant part, the Rules require that appraisals and experts' reports be filed within six months after the filing and service of the claim (see 22 NYCRR 206.21 [b], [d]), which time period may be extended by order of the Court or stipulation of the parties (see 22 NYCRR 206.21 [h] [1], [2]). After the parties have filed their appraisals and reports, the Clerk sends copies of the appraisals and reports to all of the other parties (see 22 NYCRR 206.21 [e]). If the parties wish to file an amended or supplemental report or appraisal, it must "be filed within two months after the exchange of appraisals and reports" (22 NYCRR 206.21 [f]), and if the parties wish to file a rebuttal to any report, it must be filled within one month of receipt of the document sought to be rebutted (see 22 NYCRR 206.21 [g]). A party who fails to file appraisals and expert reports is precluded from offering any expert proof at trial (see 22 NYCRR 206.21 [i]). The purpose of these rules "is to permit the free and liberal exchange of appraisals for the initial time period following the filing of the claim or within the extended time period, but to impose rigid standards thereafter" (Dufel v State of NY, NY State Thruway Auth., 187 AD2d 792, 793 [1992]; see Abele v State of New York, UID No. 2011-015-256, Claim No. 114409, Motion No. M-79783, Cross-Motion No. CM-79795, Collins, J. [Aug. 31, 2011]).

The Court declines to grant the relief sought by claimant. The Court views claimant's request as one for leave to file a new appraisal and a new engineer's report to replace its originally filed appraisal and engineer's report. The Rules, which are fairly prescriptive and detailed, only permit the filing of amended, supplemental or rebuttal reports following the exchange of appraisals and provide no mechanism for filing a "substitute" report or appraisal.

In any event, the Court finds that the circumstances presented here do not justify the relief requested. Claimant's counsel cannot claim surprise by the existence of covenants and restrictions on the property, or defendant's engineer's application of them in his rebuttal to claimant's engineer's report, as claimant's appraiser, in her rebuttal, clearly states that she was aware of the covenants and restrictions and that they would not change the values in the appraisal. Moreover, claimant did not avail itself of relief available to it under the Rules. Upon receipt of defendant's engineer's report in rebuttal after the reports were exchanged on May 3, 2011, claimant could have filed an amended or supplemental engineer's report within the applicable time period but did not do so (see 22 NYCRR [*4]206.21 [f]).[FN3] In addition, counsel indicates that damages would not be increased as a result of the new appraisal. Under these circumstances, the Court finds that the relief sought by claimant is not warranted.

Based upon the foregoing claimant's motion is denied.

Albany, New York

March 30, 2012

JAMES H. FERREIRA

Judge of the Court of Claims

Papers considered:

1.Notice of Motion dated August 30, 2011;

2.Affirmation in support of the motion by Edward Flower, Esq. dated August 30, 2011;

3.Affirmation in opposition by Michael A. Sims, AAG dated September 21, 2011;

4.Reply affirmation in support of the motion by Edward Flower, Esq. dated September 28, 2011; and

5.Surreply affirmation in opposition by Michael A. Sims, AAG dated September 30, 2011. Footnotes

Footnote 1: Claimant's contention, in reply, that defendant's opposition papers were untimely served is without merit. The motion was returnable on September 28, 2011. Pursuant to claimant's properly-made demand, answering papers were required to be served at least seven days prior to the return date (see CPLR 2214 [b]). Accordingly, service of defendant's opposition papers by mail on September 21, 2011, seven days prior to the return date, was timely (see CPLR 2103 [b] [2]). However, as claimant acknowledges, claimant's reply affirmation was served one day late, as it was mailed on September 28, 2011 (see CPLR 2214 [b]). Nevertheless, the Court discerns no prejudice arising from the late filing in this particular matter, and will therefore accept claimant's untimely reply papers. The Court also denies defendant's request, in its "surreply" affirmation, to strike claimant's reply papers. Notably, neither the CPLR nor the Court of Claims Act authorizes the filing of a surreply affirmation, and neither opposing counsel nor the Court has consented to the submission of a surreply affirmation in this matter. However, because the Court has accepted claimant's untimely reply papers, it will also consider the surreply affirmation.

Footnote 2: Defendant cites to Uniform Rules for the Court of Claims § 206.21 (g) (3) in support of its argument. However, pursuant to an amendment of the Rules, this section no longer exists. Rule 206.21 (g) (3) had provided that a party seeking an extension of time to file an appraisal was required to show "unusual and substantial circumstances" justifying the extension (22 NYCRR 206.21 [former] [g] [3]; see Dufel v State of NY, NY State Thruway Auth., 187 AD2d 792, 792 [1992]). The Court assumes that counsel intended to refer to Rule 206.21 (h) (3), which requires that a party seeking "other or further relief from the requirements or consequences of this section" show "unusual or substantial circumstances" for the relief sought (22 NYCRR 206.21 [h][3]). As Rule 206.21 (h) pertains to extension of time, the Court finds that provision inapplicable to this motion.

Footnote 3: Claimant had two months after the exchange of appraisals and reports to file a supplemental or amended report, or until May 31, 2011 (see 22 NYCRR 206.21 [f]).