Zetterstrom v County of Saratoga

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Zetterstrom v County of Saratoga 2011 NY Slip Op 34267(U) June 1, 2011 Supreme Court, Saratoga County Docket Number: 20083894 Judge: Stephen A. Ferradino Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT STATE OF NEW YORK COUN1Y OF SARATOGA DEBORAH C. ZETTERSTROM in her capacity as Co-Trustee of the Zetterstrom Family Trust, Plaintiff, DECISION nd ORDER RJI # 45-1-2 10-1601 Index #2008 894 - against- THE COUNTY OF SARATOGA, Defendant/Third-Party Plaintiff, - againstr.u (J) ~ l> ("") ):.;>- W.M. SCHULTZ CONSTRUCTION, INC. r-r::::o j/TIJ> (1)::0-i Third-Party Defendant. --!~o ~u)f.? 1.I ' •1 ... c·r ' Ll-, . c:• APPEARANCES >_!.c: - ("'):Z Zrri~ Deily Mooney & Glastetter, LLP -< -:: Attorneys for the Plaintiff 8 Thurlow Terrace Albany, New York 12203 L c:: :z I c::o -0 :J: .. N (J1 ~· FitzGerald Morris Baker Firth, P.C. Attorneys for the Defendant/ Third-Party Plaintiff 16 Pearl Street Glens Falls, NewYorkY 12801-3636 STEPHEN A. FERRADINO, J ' The defendant has requested an order of this court to strike fJ~om plaintiffs I verified bill of particulars and/or to dismiss all claims and/or cause~: of action contained ! in the bill of particulars and not set forth in plaintiffs notice of clai+ and supplemental i notice of claim and precluding plaintiff from offering any evidence 1t the time of trial I with respect to these claims and/ or causes of action. Plaintiff oppo,es the motion and ' I Page 1 of 6 ' r -rJ l'TI 0 [* 2] brings a cross-motion seeking leave to amend her notice of claim an~:l her verified complaint. Although there is both a notice of claim and a suppleme~1tal notice of claim, the information on the documents is the same. The only difference 1.s a notarized I acknowledgment on the second document. The court will therefore refer to the "notice of claim" as a term meaning both. Defendant takes the position that plaintiff limited her pleadi~Lgs by the notice of i claim. That notice says that a trespass and laying waste of property ; ccurred "on or o about July 23, 2007". Defendant's demand for a bill of particulars approximate time of the occurrence". Defendant now objects to pla ntiffs response designating not only July 23, but also July 24 and 25, 2007 as the o erative dates. The purpose of a notice of claim is to give the municipality a early opportunity to investigate the details of a claim. Here the notice of claim notes "on or about" time frame. That the alleged acts may not have occurred exclusively on J ly 23, 2007 should not come as a surprise to the defendant. Its investigation of the clai should not have been hampered or prejudiced by the description in the notice of clai . Defendant also faults plaintiff for failing to disclose RPAPL § 861 as a particular and specific claim in the notice of claim. Defendant's queried in its ,demand for a bil1 of particulars as to which laws the plaintiff will claim defendant violat~d. Plaintiff at that point noted RPAPL § 861 which has provision for treble damages atjd attorney fees when the wrongful cutting of trees occurs. The notice of claim lays ~mt that defendant's I agents trespassed, bulldozed and laid waste to plaintiffs property i~ connection with the ! I construction of a water utility pipe line. Furthermore in her 50-h tejstimony the ! I plaintiffs detailing of the trespass included the cutting of trees on tUe property. She I ! Page 2 of 6 [* 3] indicated that there was an "enormous pile of cut trees." Defendant maintains this is a new claim and that the defend~nt is surprised and prejudiced by the proposition that the plaintiff may seek treble damjlges and attorney I fees under RPAPL§ 861. Defendant cites Friedland v County of Wai ren, 61 AD2d 1138 r I [2009] as standing for the proposition that new claims and new cauj:;es of action are prohibited at the bill of particulars stage in the proceedings. In Frieldland the Appellate I Division gives no facts, but it does reflect on Gagnon v City ofSara foga Springs, 51 AD3d 1096 [2008]. The facts in Gagnon are widely distinguished om the case at bar. In Gagnon the plaintiffs notice of claim made note of a defective cu b and poor lighting. In the plaintiffs complaint a new theory was presented, that being i adequate crowd control. Here the plaintiff clearly had laid the foundation for its claim under the RPAPL in its notice of claim and amplified its notice in detail in the 50-h heari g. Zellerstrom's notice of claim identified for the defendant the date, the location an the nature of the project about which a trespass and damage was claimed. A brief int mal investigation would likely have brought to light any cutting of trees on the prope having allegedly been bulldozed and laid to waste. The plaintiffs claim under RPAP , § 861 cannot be ' categorized as a new claim or new cause of action. Rather, it is an ~plification of the notice of claim and plaintiffs complaint that is properly identified i~l the plaintiffs bill of particulars in response to the defendant's demand for plaintiffs bill[of particulars. In its reply the defendant claims that there is no foundation ~or a claim under I RPAPL § 861. Defendant relies on portions of plaintiffs 50-h testimlonyto support its I position. Through select transcript excerpts, the defendant claims ~arious points. Per I ! Page 3 of 6 i [* 4] the defendant's recounting, the plaintiff testified that no further tre<~ cutting or mowing occurred on July 24 or 25, 2007. Theoretically this negates the clai~n of trespass on i those dates, but plaintiff testified that other trespass occurred on thl>se dates. Therefore this issue remains open. Per the defendant, the plaintiff also testified that the trespas~ was not intentional. A careful reading of the transcript yields otherwise. Plaintiff testifiejd plainly that the ' trespass by the County's agents occurred when the County (wrongfu,lly) gave permission to its agents. The comment about the trespass being "not intention I" taken in context indicates that the agents believed that the County had given adequa e permission. The comment does not relieve the County of its potential liability under espondeat superior. There is much questioning in the 50-h hearing about the Cou ty's rights under an easement. To the extent that there are "admissions," the Plaintiff c ntinually qualified her 50-h hearing answers by noting that she did not have the easem nt "document in front of (her)." Additionally she repeatedly explained that certain 1 better explained by her attorney. The record presented does not co tain the language of the easement, or a map. Furthermore it does not provide any evide ce that all of the alleged trespass occurred in the "easement." The argument advanc . by the defendant that the undefined easement absolves it ofliability is at best unpers~tasive and at worst disingenuous. It is interesting to note that the defendant's demand for a billl of particulars is well ! suited for a personal injury action, asking such information as "the 11ength of time the I I plaintiff was partially disabled" and "the length of time the plaintiff t.vas confined to the hospital." Plaintiff did what she could to fashion meaningful respo~ses to questions that Page 4 of 6 I I [* 5] would be totally unrelated to a trespass action and destruction of pr perty. Plaintiff now seeks leave of the court to amend her notice of claim and her compl int to eliminate the basis of defendant's current motion. "Provided that there is no prejudice to the nonmoving party nd the amendment is not plainly lacking in merit, leave to amend pleadings under CPL 3025 (b) should be freely granted. " U.S. Fidelity and Guar. Co. v Delmar Developmen , 22 AD3d 1017 [2005]; Smith v Haggerty, 16 AD3d 967, 967-968 [2005], quoting tate ofNew York v Ladd's Gas Sta., i98 AD2d 654, 654 [2003]. The court finds that there is no surprise or prejudice in the plaintiffs bill of particulars and therefore denies th~: relief sought by ' defendants. Furthermore the plaintiffs motion to amend is grante~. Plaintiff may i amend the notice of claim and complaint accordingly; that is plainti1f may include the i dates July 24 and 25, 2007 and may note RPAPL § 861. ! I i Any relief not specifically granted is denied. No costs are aw~.rded to any party. I The original decision and order shall be forwarded to the plaintiff fojr filing and entry. The underlying papers will be filed by the court. .Dated: .../ tM,;\.:(.: I, L 0I I Malta, New York 1 ·7 lg, ~".) /} . u.--- ~ STEPHE~RRADIO(J.S.C. ~n~ ~ rr:::o I ENTERE~J ~KaUileert A Ma~chlone Papers Received and Considered: A111 . ll c._ ~ ~? ~ r- f"l"I ):> ~ ~ i-:. (X) '"rl () ,, :z: n ~ ~ U) ~c:- Notice of Motion dated February 7, 2011 c::: :E -< rri:; Affirmation of Jill E. O'Sullivan, Esq., affirmed February 7, 2011 wit11 attached Exhibifr Saratoga Countjr Clerk ~D I Memorandum of Law dated February 7, 2011 Page 5of 6 [* 6] Notice of Cross-Motion dated March 18, 2011 Affirmation of Alexander Powhida, Esq., affirmed March 18, 2011 h attached Exhibits A-D Memorandum of Law in Opposition to Motion to Dismiss of Sarato a County and in Support of Cross-Motion to Amend the Notice of Claim and Compla nt dated March 18, 2011 Rep1y Affirmation of Martin A. Cohen, Esq., affirmed March 28, 20 Memorandum of Law dated March 28, 2011 Page6 of 6

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