Opinion
Nos. 2022-04773 2022-09106 Index No. 788/17
05-29-2024
In the Matter of Village of Kings Point. Village of Kings Point, appellant; Nanwani, et al., respondents.
Egan & Golden, LLP, Patchogue, NY (Harvey B. Besunder and Zachary D. Dubey of counsel), for appellant. Fufidio Law, PLLC, Kings Park, NY (Michael M. Fufidio of counsel), for respondents.
Egan & Golden, LLP, Patchogue, NY (Harvey B. Besunder and Zachary D. Dubey of counsel), for appellant.
Fufidio Law, PLLC, Kings Park, NY (Michael M. Fufidio of counsel), for respondents.
ANGELA G. IANNACCI, J.P. CHERYL E. CHAMBERS LINDA CHRISTOPHER CARL J. LANDICINO, JJ.
DECISION & ORDER
In a condemnation proceeding, the condemnor, Village of Kings Point, appeals from (1) an order of the Supreme Court, Nassau County (Vito M. DeStefano, J.), entered April 29, 2022, and (2) an order of the same court entered September 19, 2022. The order entered April 29, 2022, insofar as appealed from, denied that branch of the condemnor's motion which was for leave to withdraw certain appraisal reports and file substitute appraisal reports prepared by a new expert witness. The order entered September 19, 2022, denied the condemnor's motion for leave to renew and reargue that branch of its prior motion which was for leave to withdraw certain appraisal reports and file substitute appraisal reports prepared by a new expert witness.
ORDERED that the appeal from so much of the order entered September 19, 2022, as denied that branch of the condemnor's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further, ORDERED that the appeal from so much of the order entered September 19, 2022, as denied that branch of the condemnor's motion which was for leave to renew is dismissed as academic in light of our determination on the appeal from the order entered April 29, 2022; and it is further, ORDERED that the order entered April 29, 2022, is reversed insofar as appealed from, on the law, that branch of the condemnor's motion which was for leave to withdraw certain appraisal reports and file substitute appraisal reports prepared by a new expert witness is granted on condition that, within 60 days from service of notice of entry of this decision and order, the condemnor shall file its substitute appraisal reports together with an affidavit from the condemnor's new expert witness stating that he or she has not had available nor had any knowledge, direct or indirect, in whole or in part, of the contents of the respondents' initial appraisal reports, prior to the time of such filing; and it is further, ORDERED that the condemnor is awarded one bill of costs.
In 2017, the condemnor, Village of Kings Point, acquired certain real property from the respondents herein (hereinafter the claimants) through condemnation pursuant to the Eminent Domain Procedure Law for public use as replacement parkland. In 2021, the parties filed and exchanged appraisal reports in accordance with 22 NYCRR 202.61.
Prior to the filing and exchange of any rebuttal reports, the Village moved, inter alia, for leave to withdraw its appraisal reports and file substitute appraisal reports prepared by a new expert witness on the ground that the expert witness who had prepared the appraisal reports for the Village was no longer able to work on the matter or testify at trial for medical reasons. By order entered April 29, 2022, the Supreme Court, among other things, denied that branch of the Village's motion.
Thereafter, the Village moved for leave to renew and reargue that branch of its prior motion which was for leave to withdraw its appraisal reports and file substitute appraisal reports prepared by a new expert witness. By order entered September 19, 2022, the Supreme Court denied the Village's motion for leave to renew and reargue. The Village appeals from both orders.
The Supreme Court erred in denying that branch of the Village's motion which was for leave to withdraw its appraisal reports and file substitute appraisal reports prepared by a new expert witness. 22 NYCRR 202.61 provides, inter alia, that in eminent domain proceedings commenced in the Supreme Court outside of New York City, appraisal reports shall be filed with the clerk of the court by no later than nine months after service of the claim, demand or notice of appearance required by Eminent Domain Procedure Law § 503, and once the clerk has received all such reports, the clerk shall simultaneously distribute to each of the other parties a copy of the reports filed (see 22 NYCRR 202.61[a][1]; 202.59[g][1][i], [ii]). Nonetheless, pursuant to 22 NYCRR 202.61(a)(3), "the court may, upon good cause shown, relieve a party of a default in filing a report, extend the time for filing reports, or allow an amended or supplemental report to be filed upon such conditions as the court may direct." Here, the Village established that the expert witness who authored its initial appraisal reports was no longer able to serve as its expert witness as he was unable to review the exchanged appraisal reports, prepare rebuttal reports, or testify at trial for medical reasons. Under the circumstance, the Village has shown "good cause" for the requested relief (see Matter of Staten Is. Bluebelt Phase 2 [City of New York-Hasson], 108 A.D.3d 773, 773; Matter of Town of Oyster Bay, 174 A.D.2d 676, 677).
The claimants contend that the Supreme Court properly declined to allow the Village to withdraw its appraisal reports and substitute new appraisal reports because the Village is already in possession of the claimants' initial appraisal reports, which were exchanged pursuant to the scheme prescribed by 22 NYCRR 202.61. Such concerns are valid, considering that one purpose of the regulatory scheme governing the exchange of appraisal reports is to prevent a party from unfairly studying the other party's valuation contentions before filing its own appraisal report (cf. Dufel v State of N.Y., N.Y. Thruway Auth., 187 A.D.2d 792, 793; Reda v State of New York, 62 Misc.2d 244, 245 [Ct Cl]). However, the claimants' concerns in that regard are addressed by the conditions imposed by this Court in connection with the granting of the requested relief (see Reda v State of New York, 62 Misc.2d at 246; see also 51 NY Jur 2d, Eminent Domain § 426). The Village must file its substitute appraisal reports together with an affidavit from the Village's new expert witness stating that he or she has not had available nor had any knowledge, direct or indirect, in whole or in part, of the contents of the claimants' initial appraisal reports, prior to the time of such filing.
In view of the foregoing determination, the appeal from so much of the order entered September 19, 2022, as denied that branch of the Village's motion which was for leave to renew must be dismissed as academic.
IANNACCI, J.P., CHAMBERS, CHRISTOPHER and LANDICINO, JJ., concur.