Opinion
# 2017-045-042 Claim No. 127197 Motion No. M-90222 Cross-Motion No. CM-90323
10-04-2017
CALVIN T. WICKS, MICHAEL D. WICKS and PATRICIA A. WICKS v. THE STATE OF NEW YORK
Flower, Medalie & Markowitz By: Edward Flower, Esq. Hon. Eric T. Schneiderman, Attorney General By: Christopher M. Gatto, Assistant Attorney General
Synopsis
Defendant's motion to dismiss appropriation claim due to failure to comply with CCA 11 (b). Also seeking summary judgment to dismiss that portion of the claim seeking consequential damages due to installation of recharge basin on neighbor's property. Claimants cross-move for additional discovery.
Case information
| UID: | 2017-045-042 |
| Claimant(s): | CALVIN T. WICKS, MICHAEL D. WICKS and PATRICIA A. WICKS |
| Claimant short name: | WICKS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127197 |
| Motion number(s): | M-90222 |
| Cross-motion number(s): | CM-90323 |
| 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: | October 4, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion; Defendant's Affirmation with annexed Exhibits A-B; Defendant's Memorandum of Law; Claimants' Notice of Cross-Motion; Claimants' Affirmation; Claimants' Memorandum of Law; Defendant's Affirmation In Reply and in Further Support and in Opposition to Cross-Motion; and Claimants' Additional Submission in Opposition and in Further Support of Cross-Motion and Defendant's Reply Affirmation.
Defendant, the State of New York, moves this Court for an order dismissing a portion of claimants' appropriation claim under CLR 3211 (a) (2), (7), and (8) for lack of subject matter jurisdiction over the claim, lack of personal jurisdiction over the defendant and for failure to comply with Court of Claim Act § 11 (b). In the alternative, defendant moves for summary judgment under CLR 3212 setting forth that claimants are not entitled to damages as a result of the State's installation of a recharge basin on an adjacent parcel as a matter of law.
Claimants cross-move for an order reopening discovery directing defendant; to supply claimants' counsel with a survey, drawing or diagram which shows the actual physical location of pipes or conduits located within the temporary easement area or in the immediate vicinity that carry water to the recharge basin; to identify persons with knowledge of the installation of the recharge basin and to direct such person or persons to appear at an examination before trial.
Defendant argues that the portion of the claim seeking consequential damages should be dismissed because the claim fails to state the nature of the claim, time of the occurrence, location of the occurrence and the damages allegedly sustained with respect to an adjacent parcel of land owned by the State of New York, thereby rendering the Claim jurisdictionally defective under Court of Claim Act § 11 (b).
Court of Claims Act § 11 (b) requires in pertinent part that, "[the claim shall state the time when and the place where such claim arose, the nature of same, [and] the items of damage or injury claimed to be sustained." It adds that "[a] claim for the appropriation by the state of lands, or any right, title or interest in or to lands, shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed." In addition, § 504 of the Eminent Domain Procedures Law (EDPL) which governs appropriation cases, sets forth that the claim shall include the name of the condemnor; reasonable identification of the property affected by the acquisition; a general statement of the nature and type of damages claimed; and the name of the attorney if the condemnee is represented.
The filed Claim is for the permanent and temporary appropriation of land and improvements by the State of New York. The claim incorporated by reference the official appropriation maps and set forth that the particulars of claimants' damages are direct, severance and consequential damages for appropriation of fee, de jure appropriation of a permanent or temporary easement and/or the de facto appropriation of a temporary or permanent easement in the amount of $250,000.
Defendant alleges that it became aware for the first time in December 2016, after the simultaneous exchange of expert reports, that claimants were alleging damages to their property as a result of the State's installation of a recharge basin on neighboring property owned by the State of New York.
Defendant argues that the claim lacks enough information for the State to have the opportunity to thoroughly investigate the claim. Additionally, claimants' failure to itemize the adjacent parcel in the claim and to detail the damages flowing from the State's installation of a recharge basin requires the State to ferret out or assemble information thus making the claim jurisdictionally defective.
In response, claimants set forth that the only property appropriated from them is as set forth in the Claim and described by the maps attached thereto. In addition, the damages sought by claimants are damages to the reduction in value of the remainder from which the State had appropriated a temporary easement which is all set forth in the Claim. Claimants also contend that they are not making a claim for damages to the property on which the recharge basin is being built, the sole claim is made for damages to the property owned by claimants.
The Court finds it prudent at this point to discuss the genesis of an appropriation claim. After the State has established the necessity of the acquisition, the State must appraise the real property. The State then shall establish an amount which it believes represents just compensation and make a written offer to the condemnee. The offer, wherever practicable includes an itemization of the total direct, severance or consequential damages and benefits that apply to the property (see EDPL §§ 302, 303). The condemnee then can accept or reject that offer. Prior to acquiring the property, the State must among other things, file acquisition maps with the appropriate offices. The State must, within 90 days after filing the acquisition maps, serve upon the property owner a Notice of Acquisition and a copy of the map affecting the property. The property owner then has three years from the date of vesting or the service of the Notice of Acquisition within which to file a claim for damages. Additionally, in order to avoid the suspension of interest, a claimant must file their claim within six months after service of the Notice of Acquisition (EDP § 514). The State has no obligation to file an answer or plead affirmative defenses. The Court is required to adopt rules governing the time for the filing and exchanging of written appraisal reports as well as all other reports.
The Court of Claims adopted rules set forth in 22 NYCRR 206.21 (b) which state that each appraisal report shall set forth separately the value of land and improvements, including fixtures, if any, together with the data upon which such evaluations are based, including but not limited to: (1) the before value and after value; (2) direct, consequential and total damages; (3) details of the appropriation; (4) details of comparable sales; and (5) other factors which will be relied upon at trial. There are rules for the appraisal of fixtures as well as rules for the method and manner of exchanging reports, the amendment of and supplementation of expert reports, the submission of rebuttal reports as well as seeking extensions of time.
The hiring of experts is necessary and contemplated by statute and by rule for the purpose of determining the full extent of the change of value and/or damages, if any, to the subject property as a result of the acquisition. Moreover, the statute premises receipt of interest on the filing of a claim within six months of the Notice of Acquisition. At that juncture in time, the State is in a better position than claimants to know the extent of the damages, if any, that the property may sustain. Claimants will not know the full extent of the damages until the property appropriated by the State is used and/or an appraisal based upon the usage in conducted. Claimants point out that the State now uses a design/build method of construction, so at the time required to file a claim, it may be impossible for a property owner to be fully aware of the precise manner in which the State intends to make use of a property interest which it has appropriated.
Given the facts and circumstances of this matter, the Court finds that the claim satisfies Court of Claim Act § 11 (b). Accordingly, defendant's motion to dismiss is denied.
Turning to defendant's motion for summary judgment, defendant argues that as a matter of law, claimants are not entitled to consequential damages for the loss of aesthetics due to the installation of a recharge basin on adjacent land owned by the State of New York and that portion of the claim should be dismissed. The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsport Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634, 636-637 [2d Dept 2010]).
Claimants argue that they are seeking damages not only for the loss of aesthetics and privacy but because the installation of a recharge basin has caused a loss of marketability to the subject property. Claimants also contend that consequential damages are appropriate because the easement contributed to the ultimate construction and maintenance of the recharge basin. More specifically, claimants put forth that the easement was acquired to install conduits to the recharge basin and without the easement there would be no recharge basin.
Additionally, claimants seek discovery in the form of a survey and examinations before trial to determine the role the subject property played, if any, in construction of the project which included the installation of the recharge basin.
Consequential or severance damages may occur if there is a diminution in value of the remaining property as a result of the taking (Murphy v State of New York, 14 AD3d 127 [2d Dept 2004]). Consequential damages are limited to damages resulting from the use of the condemned portion of the property only; damages resulting from the taking of neighbor's lands are not compensable (Lucas v State of New York, 44 AD2d 633 [3d Dept 1974]). Claimants argue that consequential damages are appropriate because the easement contributed to the construction of the recharge basin. In support, claimants cite Dennison v State of New York, 22 NY2d 409 (1968), where the Court of Appeals recognized that when the State appropriated a portion of claimants' property and constructed a highway thereupon, claimants were entitled to consequential damages taking into consideration the loss of privacy and seclusion, the loss of view and the increased traffic noise, lights and odors as factors. However, the holding in Dennison has rarely been extended beyond the unique facts of that case and to this Court's knowledge has never been extended in a situation where there has not been at least a partial taking of property by appropriation (City of Yonkers, 40 NY2d 408 [1976]; DuBois v State of New York, 54 AD2d 782 [3d Dept 1976]; Sperry v State of New York, 50 AD2d 618 [3d Dept 1975]).
In the present case the appropriation was in the form of a temporary easement and not a fee taking. The case law is clear that condemnees are not entitled to consequential damages for the taking of a neighbor's land unless a property interest exists in the appropriated parcel (DuBois v State of New York, 54 AD2d 782 [3d Dept 1976]; Rochester Refrigeration Corp. v State of New York, 25 AD2d 943 [4d Dept 1966]). Defendant has established that claimants have no property interest in the adjacent land, owned by the State. As a result, defendant's use of the neighboring property as a recharge basin does not give rise to consequential damages in this matter (id.).
Therefore, for the foregoing reasons, the Court is constrained to partially grant defendant's motion to the extent that claimants are estopped from seeking consequential damages as a result of the installation of a recharge basin on neighboring property. Defendant's motion is denied in all other respects. Accordingly, claimants' cross motion is denied.
October 4, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims