Opinion
No. 114409.
2011-08-31
Jeffrey ABELE, Sharon Abele, Rodney Abele, Thelma M. Abele Revocable Trust, and Kenneth W. Abele Revocable Trust, Claimants, v. The STATE of New York, Defendant.
The Effron Law Firm by Joshua J. Effron, Esquire, for Claimants. Eric T. Schneiderman, Attorney General by Audrey V. Bullen, Esquire, Assistant Attorney General, for Defendant.
The Effron Law Firm by Joshua J. Effron, Esquire, for Claimants. Eric T. Schneiderman, Attorney General by Audrey V. Bullen, Esquire, Assistant Attorney General, for Defendant.
FRANCIS T. COLLINS, J.
In this action for appropriation of claimants' property by the State, claimants move for an extension of time to file their appraisal report which was due to be filed on April 26, 2011pursuant to a stipulation of the parties “So Ordered” by the Honorable Brooks DeBow on July 14, 2010. Defendant opposes the motion and cross-moves for sanctions pursuant to CPLR 3126.
The claim filed October 26, 2007 alleges damages for the appropriation of certain property on Everett Road in the Town of Colonie, State of New York. It is undisputed that title vested in the State on January 30, 2004; that claimants were previously represented by the law firm of Hacker & Murphy, LLP, and that claimants' current attorney, Joshua J. Effron, was substituted as counsel for the claimants on August 13, 2009. Upon his substitution as the attorney for the claimants in August 2009, Mr. Effron “strongly urged” claimants to interview and select an appraiser as soon as possible (affirmation of Joshua J. Effron dated April 22, 2011, ¶ 5).
In support of claimants' application for an extension of time to file their appraisal report, Mr. Effron avers that despite the passage of more than five years since the date title vested in the State, no advance payment had been made at the time of his substitution. He states further that the file had been assigned to three different attorneys in the Attorney General's office and it was not until August 5, 2010 that he received the agreement for an advance payment, which he returned, fully executed, to the defendant on September 16, 2010. Mr. Effron also indicates that he suffered health problems in November and December 2010 and was hospitalized from December 29, 2010 until January 2, 2011. In February 2011 his 100 year-old mother-in-law passed away and it was not until after her funeral that Mr. Effron learned claimants had not yet retained an appraiser. An affidavit of Kenneth V. Gardner, II, was submitted in support of the motion in which he avers that he was retained to perform a valuation of the property on March 11, 2011, that the subject property “is a complex, integrated commercial and industrial property” and that an extension of six months beyond the current due date for the filing of the appraisals is necessary to complete his investigation, research and analysis (affidavit of Kenneth V. Gardner, II, ¶ 4).
Defendant asserts in opposition to the motion that any delay in issuing the advance payment was attributable to the claimants, who failed to provide the paperwork necessary to process the payment.
Defendant also contends that the delay in issuing the advance payment had no effect on the claimants' ability to retain an appraiser and points out that Mr. Effron himself admits that upon his substitution as claimants' attorney in August 2009 he “strongly urged claimants to interview and select a competent appraiser as soon as possible”. Defendant asserts that since at least January 15, 2004 when the pre-vesting offer pursuant to EDPL § 303 was conveyed (affirmation of Audrey V. Bullen dated May 4, 2011, ¶ 11), claimants knew or should have known the services of an appraiser would be necessary. Defendant contends, moreover, that claimants were represented by counsel since at least October 2007 when they filed the instant claim and surely knew or should have known of the need for an appraiser since that time. Given the passage of almost four years since the date the claim was filed, defendant contends that any further extension of time to file an appraisal report in this matter would prejudice the State as interest on an award, if any, will continue to accrue. Lastly, defendant contends that neither Mr. Effron's health problems in November and December 2010 nor the death of his mother-in-law in February 2011 justify a further extension of time to file an appraisal given the age of the case and the date of the taking.
As of the date title was certified on April 28, 2003, title to the subject property was held in the name of the Kenneth W. Abele Revocable Trust and the Thelma M. Abele Revocable Trust (defendants' Exhibit A). Prior to vesting, however, Thelma M. Abele, one of the trustees, passed away. It was thereafter determined that the pre-vesting offer pursuant to EDPL § 303 and any resulting agreement could be made to Kenneth W. Abele, as sole surviving trustee of the trusts. Defense counsel indicates that in December 2004 title to the subject property was transferred to Rodney Abele, Sharon Abele and Jeffrey Abele. According to defense counsel, it was Rodney Abel's position thereafter that his father, Kenneth Abele, no longer had an interest in the property and that the advance payment should therefore be made to him as well as Sharon Abele, his wife, and Jeffrey Abele, his son. Defendant asserts that in order to do this, an assignment of claim and release from Kenneth Abele was necessary. It was not until after Mr. Effron was substituted as claimants' counsel that an assignment of claim was finally provided on July 20, 2010 (affirmation of Audrey V. Bullen dated May 4, 2011, ¶ 28; defendant's Exhibit C). On September 16, 2010 an advance payment agreement was executed and payment was made in accordance therewith in November 2010 (affirmation of Audrey V. Bullen dated May 4, 2011, ¶ 30). Thus, defendant contends that the delay in issuing the advance payment was attributable to the claimants, not the State.
Defendant's cross-motion pursuant to CPLR 3126 seeks an Order precluding the claimants from adducing testimony and evidence at trial on issues related to the examination before trial of Rodney Abele or the documents sought to be produced in both the notice for an examination before trial and the demand for discovery and inspection served thereafter. Defense counsel asserts that the former attorney handling the case in the Attorney General's office had attempted, unsuccessfully, to schedule an examination before trial prior to his retirement in September 2010. However, a notice for an examination before trial of the claimant, Rodney Abele, which purportedly included a request for documents, was not served until October 28, 2010 (affirmation of Audrey V. Bullen dated May 4, 2011, ¶ 47). The examination was conducted on November 23, 2010, the transcript was forwarded to claimants' counsel on December 22, 2010, and defendant's demand for discovery was served on February 8, 2011 (affirmation of Audrey V. Bullen dated May 4, 2011, ¶¶ 47, 48 and 49). Defense counsel complains that it was not until April 12, 2011, after she requested a conference with the Court, that claimants' counsel returned the fully executed transcript and responded to discovery. It is on this basis alone that defendant seeks the sanction of preclusion. Neither the notice for an examination before trial of claimant, Rodney Abele, nor the discovery notice allegedly served but belatedly complied with were produced in support of the motion.
The Uniform Rules for the Court of Claims require appraisals to be filed with the Clerk of the Court within six months after the filing of a claim (22 NYCRR 206.21[b] ). An initial extension of the time for filing an appraisal of up to six months may be granted upon a letter application to the assigned Judge showing “good cause” for the extension (22 NYCRR 206.21[h][1] ). An application for a further extension must be made “prior to the expiration of any previous extension” by motion showing “good cause” or may be set forth in a so ordered stipulation (22 NYCRR 206.21[h][2] ). Beyond that, “[a]n application for other or further relief from the requirements or consequences of this section ... shall be made to the assigned judge by motion on notice showing unusual and substantial circumstances ” (22 NYCRR 206.21[h][3] [emphasis added] ). Any application for such relief made after the commencement of trial may be granted only upon a showing of “extraordinary circumstances” ( id.).The consequences of a party's failure to file a timely appraisal are grave. As set forth in the rules, “[a] party failing to file appraisals and other reports as provided in this section shall be precluded at trial from offering any expert proof, with the exception of evidence admissible under section 16 of the Court of Claims Act” (22 NYCRR 206.21[i] ).
Inasmuch as five prior extensions of time have been granted by so ordered stipulations of the parties, the instant request for an extension of time to file appraisals is governed by § 206.21[h][3] which requires a showing of “unusual and substantial circumstances”. “[T]he purpose of the appraisal rule is to permit the free and liberal exchange of appraisals for the initial time period ... but to impose rigid standards thereafter” (Dufel v. State of NY, N.Y. State Thruway Auth., 187 A.D.2d 792, 793 [1992];see also New York Tel. Co. v. State of New York, 97 A.D.2d 664 [1983];Laken Realty Corp. v. State of New York, 37 A.D.2d 885 [1971];Leider v. State of New York, 36 A.D.2d 788 [1971] ).Claimants here have proffered no reasonable excuse for the excessive delay in filing their appraisal. The original due date for filing appraisals was extended by so ordered stipulations of the parties on five separate occasions, the last of which permitted appraisals to be filed on or before April 26, 2011. Title vested in the State on January 30, 2004 ( seeEDPL § 402[A][3]; Claim ¶ 4) and a pre-vesting offer was made on January 15, 2004. In the Court's view, neither claimants' counsel's illness in November and December of 2010 nor the death of his mother-in-law in February 2011 justify the failure to file a timely appraisal given the passage of nearly four years since the claim was filed. To the extent claimants assert the delay in issuing the advance payment contributed to their delay in retaining an appraiser, the Court fails to see a connection.
In any event, it appears claimants' delay in providing the required assignment of claim may have caused or at least contributed to the delay in issuing the advance payment.
While these facts clearly provide no reasonable excuse for the delay in filing an appraisal, the Appellate Division, Third Department, has made clear that a “trial court must consider all of the relevant circumstances, not merely the excuse or reason proffered for the delay” (Matter of Town of Guilderland [Pietrosanto], 244 A.D.2d 604, 605 [1997] ). Other considerations in the case at bar include the fact that defense counsel either joined in the prior requests for extensions of time to file appraisals or at least consented to them. Moreover, defense counsel's rendition of the procedural history of this case makes clear the defendant did not even initiate discovery in this matter until years after the action was commenced and then only a few short months prior to the due date for filing appraisals. In addition, it has been held an appropriate exercise of discretion to grant a request for an extension of time to file an initial appraisal report where a contrary determination would result in severe hardship such as preclusion of the introduction of expert testimony on the issue of value ( Matter of Town of Guilderland [Pietrosanto], supra; Gustafson v. State of New York, 56 A.D.2d 695 [1977]; but see El Sawah v. Empire State Pipeline, 219 A.D.2d 839 [1995];Matter of City of Albany [Brown Equip. Co.], 199 A.D.2d 746 [1993] ). Here, § 206.21[h][i] of the Uniform Rules for the Court of Claims makes clear that a party failing to file an appraisal is precluded from offering any expert proof at trial (with the exception of evidence admissible under Court of Claims Act § 16) (22 NYCRR 206.21[h][i] ).Thus, denial of the claimants' motion would result in severe hardship. Upon consideration of all of the circumstances, including the fact that both parties contributed to the delay in prosecuting this case and the serious hardship which would befall claimants in the event their motion was denied, the Court will deny their motion unless their appraisal is filed within thirty days of the date the instant Decision and Order is filed. Inasmuch as this Court is authorized to grant the motion “upon such terms and conditions as may be just” (22 NYCRR 206.21[h][3] ), interest on any award will be suspended from April 27, 2011, the day following the last due date for filing the appraisals, to the date that claimants' appraisal is filed (subject to any further suspensions as may be appropriate pursuant to Court of Claims Act § 19).
Defendant's cross-motion pursuant to CPLR 3126 is denied. Sanctions may be appropriate where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126). While the nature and the degree of the sanction is a matter that rests within the court's discretion, sanctions are inappropriate absent a clear showing that the failure to comply with discovery was willful, contumacious or attributable to bad faith (Gillen v. Utica First Ins. Co., 41 AD3d 647 [2007];Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727 [2007];cf, O'Brien v. Clark Equip. Co., 25 AD3d 958 [2006] [prolonged willful failure to provide certain discovery warranted sanctions] ). While the defendant contends that claimants' counsel's dilatory conduct warrants preclusion of evidence at trial, it failed to establish the requisite conduct necessary to support such a sanction. First, neither the notice of examination before trial nor the discovery demand with which the claimants allegedly failed to timely comply were submitted in support of the cross-motion. More importantly, there is simply no evidence of any willful or contumacious failure to comply with discovery. Defendant's notice for an examination before trial was not served until October 28, 2010 and the examination was conducted on November 23, 2010. Absent a copy of the notice for an examination before trial and affidavit of service of same, the Court is unable to conclude that claimants' failed to timely comply ( seeCPLR 3107, 2103). Given the brief interval between the service of the notice and the date of the examination, however, it is abundantly clear that any delay in conducting the deposition was not the result of willful or contumacious conduct.To the extent defendant complains that Mr. Abele's transcript was not timely executed and returned, the remedy lies in CPLR 3116(a) which provides that “[i]f the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed.” Nor does the Court find claimants' relatively brief delay in responding to the defendant's notice for discovery so egregious as to permit an inference of willful or contumacious conduct ( cf. Doherty v. Schuyler Hills, Inc., 55 AD3d 1174 [2008] ).
Based on the foregoing, claimants' motion is denied unless their appraisal is filed within thirty days of the date the instant Decision and Order is filed, subject to the suspension of interest on any award from April 27, 2011 through to and including the date the appraisal report is filed, together with any further suspensions as may be appropriate under Court of Claims Act § 19. Defendant's cross-motion is denied.
The Court considered the following papers:
Notice of motion dated April 22, 2011;
Affirmation of Joshua J. Effron dated April 22, 2011;
Affidavit of Kenneth V. Gardner, II sworn to April 22, 2011
Notice of cross-motion dated May 4, 2011;
Affirmation of Audrey V. Bullen dated May 4, 2011 with exhibits;
Responding affirmation of Joshua J. Effron dated May 26, 2011;
Reply affirmation of Audrey V. Bullen dated May 31, 2011;
Stipulations So Ordered on: July 14, 2010, March 26, 2009, October 15, 2009, April 22, 2008 and October 24, 2008.