Summary
In Leider v. State of New York (36 A.D.2d 788), we affirmed an order denying a motion to amend the appraisals, but notice of the sale was served pursuant to section 16 CTC of the Court of Claims Act, and evidence of the sale was admitted at trial.
Summary of this case from Leider v. State of N.YOpinion
March 16, 1971
Appeal from an order of the Court of Claims, entered June 24, 1970, which denied a motion to permit an amendment of claimants' appraisal. On May 16, 1968, the State of New York appropriated 18 1/2 acres of land owned by the claimants in the Town of Wallkill, Orange County. The claim was filed with the Court of Claims on February 21, 1969 and appraisals were exchanged in August of 1969. Just prior to the filing of claimants' appraisal, the claimants, one of whom was an attorney, sold part of their remaining land, for a price of $3,600 per acre. The claimants' attorney and their appraiser were not immediately informed of this sale. The appraisal filed by claimants valued the land taken at the price of $1,750 per acre. On June 8, 1970, claimants moved to amend their appraisal for the purposes of including the subsequent sale and now appeal from the denial of that motion. Rule 25a of the Rules of the Court of Claims ( 22 NYCRR 1200.27) requires the exchange of appraisals six months after the filing of the claim. Within 60 days after filing, any party may apply for permission to file and serve an amended or supplemental appraisal. Additionally, at any reasonable time before trial, if a party can show unusual and substantial circumstances which cause undue hardship, the court in its discretion may grant relief from the requirements of the rule. Claimants' attorneys assert that they and the appraiser were unaware of this aftersale, that one of the claimants, Mr. Birnbaum, who was an attorney, was unable to meet with them at various times to explain the sale and subsequently died in November of 1969 before he could communicate the pertinent information, and that these circumstances justify relief under the rule. This court held in Farrington v. State of New York ( 33 A.D.2d 731, mot. for lv. to app. dsmd. 27 N.Y.2d 531) that the purpose of the rule is to liberally and freely permit the filing of appraisals within the six-month period following the filing of the claim, but that there should be a rigid application of the rule with respect to the late filing of appraisals. We directed Trial Judges to exercise their discretion strictly to avoid subverting the purpose of the rule. The claimants had full knowledge of the sale. They were the vendors. It is not alleged that Mr. Birnbaum was the only owner aware of the transaction, merely that he was the one most familiar with it. The fact that the attorneys or the appraiser had no knowledge of the sale is not controlling. The delay of claimants in availing themselves of this sale information and the attorneys' delay from the time they learned of the sale in the fall of 1969 until they moved for relief in June, 1970 was not excusable under the facts. Furthermore, the evidence of the sale, while not included in the appraisal, is before the court under the provisions of section 16 CTC of the Court of Claims Act. Order affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Sweeney and Simons, JJ., concur.