New York State Court of Claims

New York State Court of Claims
RICCOBONO v. THE STATE OF NEW YORK, # 2019-045-047, Claim No. 132625, Motion No. M-94349


Defendant's motion to dismiss pursuant to 3211 (a) (1) based on documentary evidence, 3211 (a) (5) res judicata and 3211 (a) (7) failure to state a cause of action.

Case information

UID: 2019-045-047
Claimant short name: RICCOBONO
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 132625
Motion number(s): M-94349
Cross-motion number(s):
Claimant's attorney: Ronald Riccobono, Pro Se
Defendant's attorney: Hon. Letitia James, Attorney General
By: Rosalinde Y. Casalini, Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 7, 2020
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation with annexed Exhibits 1-8; and Claimants' unsigned correspondence in response filed August 8, 2019 with annexed Exhibits 1-5.

Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 (a) (1), (5) and (7) seeking an order dismissing the claim.

Claimants, Ronald Riccobono and Maria Lourdes M. Velez, are owners of certain real property located at 686 Nesconset Highway (a/k/a Route 347), Town of Smithtown, County of Suffolk. The property is described on the Suffolk County Tax Map as District 0800, Section 134.00, Block 01.00, Lot 034.000. A portion of claimants' property was appropriated by defendant in May 2014 for the purpose of improving Route 347. In June 2014, claimants filed a claim seeking damages as a result of the appropriation. The claim settled before trial.

Claimants filed a second claim, pro se, on February 8, 2019 wherein they sought to recover an additional allowance, pursuant to Eminent Domain Procedure Law (EDPL) 701, for claimants' actual costs and expenses incurred in order to achieve just compensation for defendant's appropriation. The costs and expenses consisted of attorneys fees as well as expert fees.

EDPL 303 requires defendant, when appropriating real property, to make a written offer of compensation to the property owner of no less than defendant's highest approved appraisal value for that parcel. EDPL 304 provides in pertinent part that a condemnee may accept the offer as payment in full or reject the offer as payment in full and elect to accept the offer as an advance payment, thereby reserving the right to claim additional compensation.

On March 22, 2016, claimants were paid $153,600 pursuant to the Agreement for Advance Payment but apparently reserved the right to claim additional compensation.

On August 28, 2018, claimants, represented by counsel entered into a Supplemental Agreement of Adjustment and Release of Owner with defendant in the amount of $261,085 which included the Advance Payment. As a result, claimants were paid an additional $107,485 on November 23, 2018.

Defendant argues that the current claim should be dismissed since the documentary evidence establishes that claimants accepted the payment offered by the State in full satisfaction of all their claims related to the appropriation.

"A party seeking dismissal on the ground that its defense is founded upon documentary evidence pursuant to CPLR 3211 (a) (1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of [claimants'] claim" (Mazur Bros. Realty, LLC v State of New York, 59 AD3d 401, 402 [2d Dept 2009][internal citations and quotations omitted]).

"A contract is to be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself. Accordingly, when parties set down their agreement in a clear, complete document, their writing should . . . be enforced according to its terms" (Waterfront Joints, Inc. v Tarrytown Boat Club, Inc., 119 AD3d 553, 554 [2d Dept 2014] [internal citations and quotations omitted]).

In the case at bar, the plain terms of the Agreement of Adjustment and Release of Owner establish, inter alia, the amount of compensation to be paid by defendant for the total value of the property appropriated and for all legal damages caused by or consequent upon such appropriation. It also clearly states, inter alia, that in consideration of the sum of $261,085 claimants released defendant from any and all claims arising from the appropriation and agreement.

It should also be noted that claimants were represented by counsel when they entered into the Agreement of Adjustment and Release of Owner. Claimants were informed by the plain terms of the Agreement of Adjustment and Release of Owner that by entering into the agreement they would be accepting defendant's offer as payment in full and that the payment would be a complete settlement of their claim, inclusive of any EDPL 701 allowance which is merely supplementary relief as opposed to a new and independent claim (Taylor v State of New York, 200 AD2d 273 [3d Dept 1994]). Pursuant to the Agreement of Adjustment and Release of Owner a stipulation of discontinuance was entered into by the parties and filed with the Court on November 23, 2018.

Thus, the Court finds that the Agreement of Adjustment and Release of Owner is a binding agreement as to the amount of claimants' compensation and reflects claimants' acceptance of defendant's offer as payment in full, inclusive of any EDPL 701 allowance (ERA Realty v State of New York, 281 AD2d 388 [2d Dept 2001]).

Additionally, EDPL 701 requires in pertinent part that there be an order or award which is substantially in excess of the amount of the condemnor's proof. In the current matter, the parties entered into a voluntary settlement of the claim. Thus, EDPL 701 is not applicable to the facts of this case since there has not been an order or award of the Court.

Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted.

January 7, 2020

Hauppauge, New York


Judge of the Court of Claims