Matter of City of New York

[*1] Matter of City of New York 2009 NY Slip Op 52480(U) [25 Misc 3d 1238(A)] Decided on December 8, 2009 Supreme Court, Kings County Gerges, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2009
Supreme Court, Kings County

In the Matter of the Application of the City of New York relative to acquiring title in fee simple, where not heretofore acquired for the Jones Woods Park Addition to the Skyline Playground.



4020/04



Michael A. Cardozo

Corporation Counsel of the City of New York

100 Church Street

New York, NY 10007

Joseph Bavuso

of Counsel

Brandt, Steinberg & Lewis LLP

386 Park Avenue South - Suite 600

New York, NY 10016

Abraham G. Gerges, J.

Upon the foregoing papers in this eminent domain proceeding, claimant Belair Ridge Development Corp. (Belair) moves for an order: (1) pursuant to CPLR 2221(d) granting it leave to reargue the motion made by the City of New York (the City), dated March 9, 2009, seeking to prelude it from offering its amended appraisal report into evidence, as determined by this court by decision and order dated June 2, 2009 (Matter of City of New York, 2009 NY Slip Op 51102U [2009]) (the June 2009 Decision), and (2) pursuant to CPLR 2004, extending its time to conduct an examination before trial of Robert E. Englert.

Facts and Procedural Background

The facts pertaining to the instant motion have been fully set forth in the June 2009 Decision. Briefly stated, in that decision, this court granted the City's motion seeking an order precluding claimant from offering an amended appraisal report, dated January 13, 2009, into evidence at trial (the Amended Appraisal). In the Amended Appraisal, claimant no longer relies upon the contention that it had a vested right to develop the subject property in accordance with plans approved in 1990 or that, even without the vested rights, the property could be developed [*2]as proposed in a site plan prepared by Englert in 1997, as relied upon in the original appraisal report (the Lally Report). The Amended Appraisal instead relies upon a letter and site plan prepared by Calvanico, Inc. (Calvanico), in reliance upon which claimant increased its valuation of the property from $19,200,000 to $25,386,000.

As is also relevant to the instant dispute, claimant filed a note of issue and certificate of readiness on July 13, 2009. At a settlement conference held on July 13, 2009, a trial date of October 6, 2009 was set; that date has been adjourned.

Claimant's Request to ReargueClaimant's Contentions

In support of this branch of its motion, claimant argues that the Amended Appraisal was prepared in accordance with the decision of this court dated September 5, 2008, which denied claimant's motion to preclude the City from introducing its appraisal report into evidence, finding that the City could rely upon a proposed as-of-right development plan, without consideration of discretionary approvals that could serve to increase the size of the project that could be constructed on the site (Matter of City of New York, 2008 NY Slip Op 51839U [2008]) (the September 2008 Decision). Claimant now argues that its Amended Appraisal rebuts the City's appraisal because it demonstrates the City's error in asserting that the modest development relied upon in valuing the property represents the highest and best use, since the development plan proposed by Calvanico establishes that significantly more units could be built as-of-right. In the alternative, claimant argues that the need to counter the as-of-right plan relied upon by the City provides good cause to allow it to amend the Lally Report, as does the fact that it will now have to rely upon the Lally Report, without the benefit of Englert's input. Claimant further argues that even if it is precluded from introducing the Amended Appraisal, it should be permitted to introduce the development plan proposed by Calvanico.

The City's Contentions

In opposition, the City argues that in the June 2009 Decision, this court considered and rejected claimant's contentions that its Amended Appraisal should be admissible because it rebuts the City's position, that the court "sanctioned" the Amended Appraisal in the September 2008 Decision when it declined to preclude the introduction of the City's appraisal based upon a proposed as-of-right development plan and that it will suffer a hardship if it is not permitted to rely upon its Amended Appraisal. The City accordingly concludes that claimant's motion to reargue must be denied, since it fails to establish that the court misapprehended the facts or misapplied the law.

The Law

"Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision" (Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 655 [2007], quoting Howell Co. v S.A.F. La Sala, 36 AD3d 653 [2007]; accord Marini v Lombardo, 17 AD3d 545, 546 [2005]). "A motion for reargument is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented" (Gellert & Rodner v Gem Cmty. Mgmt., 20 AD3d 388 [2005], citing McGill v Goldman, 261 AD2d 593, 594 [1999]; Matter of Mayer v National Arts Club, 192 AD2d 863, 865 [1993]; Foley v Roche, [*3]68 AD2d 558, 567-568, [1979]). " Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided'" (Pro Brokerage v Home Ins. Co., 99 AD2d 971, 971 [1984], appeal dismissed 64 NY2d 646 [1984], quoting Foley, 68 AD2d at 567).

Discussion

In the June 2009 Decision, this court held that:

"Herein, a review of the Amended Appraisal supports the City's contention that it is not a rebuttal report, but is instead a report setting forth a new valuation of the property based upon the claim that it has greater development potential than was first set forth in the Lally Report. Hence, the Amended Appraisal is based upon facts that were known to claimant at the time that the Lally Report was prepared and does nothing more than offer a new theory upon which to value the property. Claimant also fails to establish that it will suffer from any hardship if it is precluded from relying upon the Amended Appraisal at trial. Accordingly, having already exchanged the Lally Report, the . . . court rules do not permit claimant to now file a second, substantially different appraisal report (see generally 22 NYCRR 202.61)."

(Matter of City of New York, 2009 NY Slip Op 51102U, 5 [2009]). In view of this holding, claimant fails to establish that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision in reaching this conclusion, since claimant merely repeats the same arguments raised in opposition to the earlier motion and rejected by the court.

In so holding, the court further finds that claimant's contention that the September 2008 Decision sanctioned its Amended Appraisal is disingenuous, since it is self evident that property can always be developed as-of-right, i.e, in compliance with all existing zoning regulations. From this it follows that claimant must be presumed to have been aware that the property could be valued based upon as-of-right development at the time that the Lally Report was prepared. Equally unpersuasive is its claim that it will suffer a hardship if it is forced to rely upon the Lally Report, without the input of Englert, since it also must be presumed that claimant intended to rely upon the Lally Report when it was filed and should have sought a deposition of Englert prior to the filing if it believed that Englert's input was necessary. Since it is well settled that the mere desire to introduce a new theory or new evidence does not constitute good cause to permit a party to amend an appraisal report, claimant's arguments are lacking in merit and its motion to reargue is denied.

Claimant's Request for an Order Extending its Time to Depose Englert

Claimant's Contentions

In support of this branch of its motion, claimant argues that in the September 2008 Decision, this court ordered Englert to appear for deposition within 30 days of service upon it of a copy of the order (September 2008 Decision at 10); the order was served on October 2, 2008. At a status conference held the next day, the court granted leave to both parties to file rebuttal appraisals. Claimant alleges that by that time, however, it had done sufficient research to determine that the as-of-right development approved by the court in the September 2008 Decision would be the basis for its rebuttal. Accordingly, since it intended to rely upon a development plan proposed by Calvanico, it had no need to depose Englert. When the court [*4]thereafter granted the City's motion to preclude the introduction of the Amended Appraisal, Englert's testimony again became critical. It therefore concludes that the court should exercise its discretion and extend the time in which it may conduct the deposition of Englert pursuant to CPLR 2004.

The City's Contentions

In opposition, the City argues that claimant's request for further discovery should be denied because it has already filed a note of issue. Since it did not move to vacate the note of issue, in order to obtain permission for further discovery, it must establish that additional discovery is necessary because unusual or unanticipated circumstances have developed subsequent to the filing. The City contends that claimant cannot satisfy this burden.

The City also asserts that claimant's motion should be denied because claimant waived its right to depose Englert when it failed to take his deposition within the time set in the September 2008 Decision. In this regard, the City also notes that claimant exchanged the Lally Report, which relied upon a site plan proposed by Englert, without seeking to depose him, and did not cross move to take Englert's deposition when the City moved to preclude admission of the Amended Appraisal. Finally, the City argues that it will be prejudiced by an order allowing the deposition because such an order would further delay resolution of the matter while the interest that the City is obligated to pay on any compensation that may be awarded continues to accrue.[FN1]

Claimant's Reply

In reply, claimant argues that the City fails to establish that any prejudice would be suffered if it is allowed to depose Englert and it again emphasizes that it will be prejudiced if he is not deposed because Englert possesses critical documents and knowledge. Claimant also contends that the instant motion was made within the 20-day period in which it could file a motion to vacate the note of issue.

The Law

Pursuant to 22 NYCRR § 202.21(d):

"Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings."

(see generally Gomez v New York City Tr. Auth., 19 AD3d 366 [ 2005]; Rodriguez v Sau Wo Lau, 298 AD2d 376 [2002]; Perla v Wilson, 287 AD2d 606 [2001]).

It has also been held that a party waives the right to conduct discovery if the discovery is not conducted during the period set by the court (see e.g. Jones v Grand Opal Constr., 64 AD3d 543 [2009]; Gill v UPS, 249 AD2d 265, 266 [1998]), or when the party fails to move to vacate [*5]the note of issue within 20 days after its service (see e.g. Manzo v City of New York, 62 AD3d 964, 965 [2009], citing 22 NYCRR 202.21[e]; James v New York City Tr. Auth., 294 AD2d 471, 472 [2002]; Schenk v Maloney, 266 AD2d 199, 200; Gill, 249 AD2d at 266).

Discussion

Herein, claimant fails to establish unusual or unanticipated circumstances that developed after the note of issue was filed that would allow it to conduct further discovery. In so holding, the court again notes that since claimant served the Lally Report, its contention that it did not intend to rely upon the development plan proposed by Englert and relied upon Lally therein is specious. Further, claimant will be presumed to have waived the right to depose Englert by not conducting the deposition as provided in the September 2008 Decision. Moreover, despite claimant's contention that the instant motion was made within 20 days after its note of issue was filed, it did not move to vacate the note of issue as is required pursuant to 22 NYCRR 202.21(e).

Accordingly, claimant's request for permission to depose Englert is denied.

Conclusion

Claimant's motion is denied in its entirety.

The foregoing constitutes the order and decision of this court.

ENTER,

J.S.C.

Footnotes

Footnote 1: Although the City also argues that the court should suspend the running of interest from the date that claimant submitted the Amended Appraisal on February 5, 2009, the court will not address this request for relief since it was not properly raised in a motion or cross motion (see generally CPLR 2214 and 2215; Chun v North American Mtge. Co., 285 AD2d 42 [2001]; Bauer v Facilities Dev., 210 AD2d 992 [1994]; Guggenheim v Guggenheim, 109 AD2d 1012 [1985]; Braver v Nassau County Office of Administrative Servs., 67 Misc 2d 120 [1971]).