Claimant moved for additional time within which to file rebuttal appraisal reports in this claim for damages arising out of the appropriation of a temporary easement over commercial property. The parties had previously agreed and the Court had so ordered that rebuttal reports were to be filed on or before May 18, 2016. By the time claimant made this motion, this deadline had long expired and claimant did not demonstrate unusual and substantial circumstances. As such, claimant's motion for an extension of time to file rebuttal reports is denied.
|Claimant(s):||ME & MORGAN, LLC|
|Claimant short name:||ME & MORGAN, LLC|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||GOLDSTEIN, RIKON, RIKON & HOUGHTON, P.C.
BY: Jonathan Houghton, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Christopher M. Gatto, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 17, 2018|
|See also (multicaptioned case)|
This is a claim for damages arising out of the appropriation of a temporary easement over commercial property located in Kings County with respect to the replacement of the Kosciusczko Bridge. The easement resulted in the temporary loss of 14 parking spaces plus an area for a trash bin. Claimant moves for additional time within which to file rebuttal appraisal reports. Defendant opposes the motion.FACTUAL HISTORY
The claim was filed on July 13, 2012. Attached to the claim was a copy of appropriation Map No. 39. The property is located at 55 Lombardy Street, Brooklyn, New York. The State acquired a temporary easement for a work area on the property on February 29, 2012. The easement consisted of a total of 2,401 square feet in the north end of the parking area and affected 14 of 100 parking spaces allocated to three tenants, namely, Staples, Deals (Dollar Store), Auto Zone, and an area used for a trash bin.
Claimant's appraisal report dated September 30, 2015 was filed on November 19, 2015. Defendant's appraisal report dated November 23, 2015 was filed on November 25, 2015. These appraisal reports were exchanged in late November 2015. Claimant valued the temporary easement as if it were a permanent taking. Defendant valued the temporary easement based on the easement's termination date of November 20, 2015, and limited its calculation of damages to the 45 month duration of the temporary easement.
By letter dated December 3, 2015, Joan Eckenwalder Margenot, law clerk to the Hon. Thomas Scuccimarra, Judge of the Court of Claims, requested that counsel advise if any pretrial discovery remained, when to expect the note of issue to be filed, and to submit a stipulation for the Court's consideration (Defendant's Exhibit C). In response, counsel for claimant and defendant entered into a stipulation which was "so ordered" by the Hon. Thomas H. Scuccinarra (Defendant's Exhibit D). In this stipulation, it was so ordered that the "Claimant and the State of New York shall file Rebuttal Reports, if any, on or before May 18, 2016" (see numbered paragraph 2, Defendant's Exhibit D). It has been almost two years since the time to file rebuttal reports expired. Claimant now moves for an additional ninety (90) days within which to file rebuttal reports.DISCUSSION
The Uniform Rules for the Court of Claims control the filing of appraisals and expert reports in appropriation claims. Pursuant to 22 NYCRR 206. 21 (b), (d), appraisals and expert reports are to filed within six months after the filing and service of the claim. The six month time period may be extended by stipulation of the parties or by order of the Court (22 NYCRR 206. 21 [h]). After the parties have filed their appraisals and reports, the Clerk of the Court sends a copy of the appraisals and reports to the other party (22 NYCRR 206. 21 [e]). If the parties wish to file an amended or supplemental appraisal and expert report, these must be filed within two months after the appraisals and expert reports have been exchanged (22 NYCRR 206. 21 [f]). If a party wishes to file a rebuttal report, it must be filed within one month of the report to be rebutted (22 NYCRR 206. 21 [g]).
The purpose of the Uniform Rules for the Court of Claims on appropriations "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 N.Y., N.Y. State Thruway Auth., 187 AD 2d 792, 793 [3d Dept 1992]). Thus, while the Court may grant an extension of time in its discretion, a motion for an extension of time must satisfy different standards depending on whether the motion is brought before or after the filing deadline has expired. A motion for an extension of time made prior to the expiration of a previous extension may be granted upon a showing of good cause (22 NYCRR 206.21 [h] ), while a motion for an extension made after the expiration of a previous extension must demonstrate unusual and substantial circumstances (22 NYCRR 206.21 [h] ). (1)
In the present claim, after a number of stipulations were agreed to by the parties appraisals were filed and exchanged in late November 2015. At the invitation of the Court, the parties submitted a further stipulation wherein it was agreed, inter alia, that rebuttal reports, if any, would be filed on or before May 18, 2016. This stipulation was "so ordered" by the Hon. Thomas H. Scuccimarra (see Defendant's Exhibit D). In December 2017, approximately one year and seven months after any rebuttal reports were to be filed, claimant moves to request an additional ninety days within which to file rebuttal reports.(2) In support of its motion, claimant argues that the time to file inadvertently lapsed and that "Claimant assumed, inadvertently and apparently incorrectly, that rebuttal reports would be exchanged on consent" (see paragraph 11 of the supporting affirmation of Jonathan Houghton, Esq. dated December 1, 2017). Claimant further argues that the defendant would not be prejudiced, trial would not be delayed, and that the Court needs rebuttal reports in order to award just compensation because of the differing approaches used to calculate damages.
As the time to submit rebuttal reports has long expired, claimant must demonstrate unusual and substantial circumstances before this Court may grant its request for an extension of time to file rebuttal reports (Katsaros v The State of New York, UID No. 2018-045-003 [Ct Cl, Lopez-Summa, J., Jan. 17, 2018]). The claimant's inadvertence and/or desire to introduce a different theory or new evidence at this late stage does not constitute good cause much less the unusual and substantial circumstances required here (Niagara Mohawk Power Corp. v Peryea, 102 AD2d 986 [3d Dept 1987]). Moreover, claimant knew in late November 2015, when the appraisal reports were exchanged, the method defendant was using to calculate damages. This issue was also known to claimant in January 2016 when it signed the stipulation extending the time to file rebuttal reports, as well as on May 18, 2016 when rebuttal reports, if any, were due. Given the facts and circumstances presented in this motion, the Court finds that claimant has failed to demonstrate unusual and substantial circumstances in order to satisfy the requirements of 22 NYCRR 206.21 (h) (3) (see Dufel v State of New York, New York State Thruway Auth., supra at 793; SPA 77 K L. P. v The State of New York, UID No. 2013-045-022 [Ct Cl, Lopez-Summa, J., June 20, 2013]).
Based on the foregoing, claimant's motion no. M-91567 for an extension of time within which to file rebuttal reports is denied.
April 17, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of Jonathan Houghton, Esq., dated December 1, 2017, with annexed Exhibits A-B;
2. Opposing affirmation of Assistant Attorney General Christopher M. Gatto, dated January 18, 2018, with annexed Exhibits A-J; and
3. Reply affirmation of Jonathan Houghton dated February 5, 2018.
1. Claimant argues that the standard to apply when a party moves for an extension of time is "good cause shown" whether the motion is filed before or after the expiration of any previous extension. Claimant bases this argument on 22 NYCRR 202.61(a). Part 202, however, is the Uniform Civil Rules for the Supreme Court and the County Court. The Court of Claims is governed by Part 206, the Uniform Rules for the Court of Claims (22 NYCRR 206).
2. In December 2016, defendant moved to compel claimant to respond to defendant's interrogatories and document demands. While claimant opposed defendant's motion, it did not cross-move at that time for permission to late file rebuttal reports. Instead it waited another year before making the present motion for an extension of time to file rebuttal reports.