Claimant's motion for an order striking defendant's second demand for document production.
|Claimant(s):||DAVIS PROFESSIONAL PARK CONDOMINIUM|
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Flower, Medalie & Markowitz
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:||July 7, 2017|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Affirmation in Support with annexed Exhibit A, Defendant's Affirmation in Opposition with annexed Exhibits A-B, and Claimant's Reply Affirmation.
Claimant, Davis Professional Park Condominium, has brought this motion seeking an order striking defendant's second demand for document production. Defendant, the State of New York, opposes the motion.
The underlying claim in this matter, filed July 30, 2015, concerns a permanent and temporary appropriation by defendant of land and improvements as part of a road improvement project in Hauppauge - Port Jefferson. The property at interest was solely owned by claimant. Claimant is seeking $500,000 dollars in direct, severance and consequential damages.
Defendant's second demand for document production requests a copy of claimant's declaration and by-laws in effect as of the date of vesting. It also requests a copy of any amendments to claimant's declaration and by-laws subsequent to the date of vesting.
Claimant argues that the information requested in the second demand for document production is irrelevant to the determination of just compensation or to the question of to whom it should be paid. Claimant believes that the demand had been made to harass claimant and its counsel.
In response defendant first argues that the motion should be denied since it was made without an attempt by claimant to resolve this discovery dispute in good faith as required by 22 NYCRR 206.8. However, this motion was adjourned so that the parties could attempt to resolve this discovery dispute in good faith. After numerous discussions with the parties over several months the Court determined that an impasse had been reached and that the motion should go forward.
Defendant next argues that the requested information is material and necessary to the preparation of the State's appraisal regarding the subject property. Defendant states that claimant's declaration is referred to in the deed for the subject property. Defendant asserts that both the condominium by-laws and declaration bear directly on the issue of just compensation for the partial taking citing Murphy v State of New York, 14 AD3d 127 [2d Dept 2004].
Claimant has failed to show that the requested information is immaterial and unnecessary in this matter. In response defendant has shown, at this juncture, that the information requested is material and necessary to its case (Murphy v State of New York, 14 AD3d 127 [2d Dept 2004]; see Real Property Law § 339).
Therefore, for the foregoing reasons, claimant's motion is denied. Claimant shall provide the information requested in defendant's second demand for document production within 60 days from the date this decision and order is filed.
July 7, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims