Opinion
# 2016-045-020 Claim No. 121388 Motion No. M-87797
07-18-2016
BELLMORE AVE. CASA, LLC v. THE STATE OF NEW YORK
Cronin, Cronin, Harris & O'Brien, P.C. By: Richard P. Cronin, Esq. Hon. Eric T. Schneiderman, Attorney General By: Charles E. Gary, Assistant Attorney General
Synopsis
Defendant's motion to dismiss appropriation claim due to failure to comply with 11 (b).
Case information
| UID: | 2016-045-020 |
| Claimant(s): | BELLMORE AVE. CASA, LLC |
| Claimant short name: | BELLMORE AVE. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| 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): | 121388 |
| Motion number(s): | M-87797 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Cronin, Cronin, Harris & O'Brien, P.C. By: Richard P. Cronin, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Charles E. Gary, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 18, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-H; Claimant's Affirmation in Opposition; and Defendant's Reply.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 (a) (2) and (7) seeking an order dismissing the claim. Claimant, Bellmore Ave. Casa, LLC, has opposed this motion.
The underlying claim in this matter involves real property with a mailing address of 515 Route 111, Hauppauge, New York. The property is also known on the Suffolk County Tax Map as Section 156, Block 2, Lots 9.3 and 9.7.
Claimant acquired the subject property on September 26, 2007 from Newport Partners Realty Co., LLC, who had acquired the subject property as well as Lots 9.5 and 9.6 in 2005 from Cedar Ridge Properties, LLC.
Defendant provided an undisputed history of the subject property since 1970 with supporting documents as exhibits to its motion.
In 1970, defendant appropriated certain portions of the subject property from one of claimant's predecessor's in interest through its eminent domain procedures. The acquired land was located between the pavement/curb of State Route 111 and the boundary of the subject property. The land was acquired in connection with anticipated improvements to State Route 111 (see Def Exh C).
In and around 1973, claimant's predecessor in interest submitted a Site Plan to the Town of Smithtown, seeking approval for a three story office building to be constructed on Lot 9.3. Thereafter, on October 30, 1973, the Town of Smithtown approved the site plan with conditions (see Def Exh D).
At or around the same time claimant's predecessor in interest applied to the New York State Department of Transportation for a Highway Work permit for a driveway from the subject property to traverse over defendant's land and to access State Route 111. Defendant's land is the aforementioned portion of the subject property acquired in 1970 and is located between the pavement/curb of State Route 111 and the boundary of the subject property.
On August 6, 1973, in response to the application for access to State Route 111, defendant notified claimant's predecessor in interest that it can issue the requested highway work permit subject to certain conditions. The owner was required to prepare a letter indicating that the driveway was to serve the building and parking as shown on the site plan. Also additions or expansion for the development of adjacent property may require changes to the access scheme.
In response to defendant's correspondence of August 6, 1973, claimant's predecessor in interest sent correspondence to defendant dated August 14, 1973 stating in part that the owners of the Medical Arts Plaza of Smithtown were willing to be subject to the conditions of the State Department of Transportation.
Subsequently, defendant issued the highway work permit. The permit approved an opening to the east side of State Route 111 to install one 25 foot intersection type driveway to provide access from the subject property to State Route 111. The permit was subject to nine specific responsibilities of the permitee and specifically the New York State Department of Transportation Commissioner's reservation, paragraph (9) (C) which stated that the Commissioner of Transportation reserves the right to modify fees and to revoke or annul the permit at any time at his discretion without a hearing or the necessity of showing cause (see Def Exh E).
Thereafter, in 1976, claimant's predecessor in interest applied to the Town of Smithtown for site plan approval to construct a second building on the subject property.
On November 3, 1976, the Town of Smithtown Director of Planning wrote to the owners of the subject property requesting certain changes to the proposed site plan. Specifically, the removal of the curbing between the subject site on south side in order to permit proper traffic circulation between the two sites (see Def Exh F).
Both buildings required the highway work permit to traverse over defendant's property to gain access to State Route 111. In addition, in accordance with the request of the Town of Smithtown Planning Department, any proposed curbing located between the two buildings was eliminated so that proper circulation of traffic was permitted between the two sites.
Claimant's predecessor in interest made a second application for a highway work permit for access to State Route 111 which was issued by defendant on October 14, 1976. The second highway work permit was subject to the same conditions and reservations as the permit issued in 1973 and specifically included the same paragraph (9) (C) which once again stated that the New York State Department of Transportation Commissioner reserves the right to modify fees and to revoke and annul the permit at any time, at his discretion, without a hearing or the necessity to show cause (see Def Exh G).
On October 19, 2005, Cedar Ridge Properties, LLC which owned all of the lots 9.3, 9.5, 9.6 and 9.7 at that time, executed a Declaration of Easement. The Declaration provided for an easement of ingress and egress from State Route 111 to and from lots 9.7, 9.6, 9.5 and 9.3 as well as a cross parking easement (see Def Exh H).
At the time claimant acquired the subject property in 2007, the highway work permits with all of the conditions and reservations were still in place. The subject property enjoyed ingress and egress from Route 111 through a driveway that ended in a Y-shape. The southerly access driveway lead to claimant's property at 515 Route 111, lot 9.03. The northerly access driveway lead to claimant's neighbor which has title to 517 Route 111, lot 9.05.
Claimant confirms that access to these lots was pursuant to the highway work permits issued by defendant in 1973 and 1976.
Upon purchasing the subject property, claimant applied to defendant for a six-unit condominium association to be built on the subject property, lot 9.03 with a combined value of $3,671,220.
Claimant asserts that on December 4, 2009, defendant filed an appropriation map entitled: East Islip-Smithtown Branch, S.H. 1208 in the Office of the Clerk of Suffolk County. Additionally, on or about October 2010, in connection with the project described in the December 4, 2009 appropriation map, defendant enlarged a sump on the property located adjacent to the subject property.
Claimant alleges that in October 2010, additional alterations were made to the lot adjacent to the subject property in order to clear space to store vehicles so that work could be performed in the project thereby completely removing the roadway access to the subject property. Defendant closed access to the southerly driveway of the Y-shaped driveway to lot 9.03.
Defendant confirms that in connection with the needs of defendant to use its property, the highway work permit issued in 1973 was revoked in 2010. The 1976 permit and access remains open and in effect.
Claimant states that on February 1, 2012 it "filed a Notice of Claim" with the Court of Claims which was "subsequently filed in January 2012" and served on defendant on March 28, 2012. Additionally, in May 2012, a "Summons and Complaint" was filed and served in this case.
On a motion to dismiss pursuant to CPLR 3211, the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The review entails "whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88).
Defendant initially argues that its decision to revoke the 1973 highway work permit was a discretionary administrative determination of a State agency which is not subject to review in the Court of Claims. Defendant has failed to establish, at this stage, that the claim would in-fact require the review of an administrative agency's determination in order to be resolved.
Defendant also asserts that the claim fails to comply with § 11 (b) of the Court of Claims Act by failing to include a specific accrual date, failing to state where the claim arose, failing to state the specific relief sought and failing to state a total sum claimed.
Court of Claims Act § 11 (b) requires in pertinent part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 [2007]). "The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]).
The procedural history of this case is convoluted. A document entitled, "Claim" was filed with the Court on February 1, 2012 and assigned a claim number by the Clerk of the Court. Claimant repeatedly refers to this document as a "Notice of Claim" however the Court of Claims Act does not provide for a notice of claim in any of its sections and does not provide for a notice of intention to file a claim in regard to appropriation claims (see CCA § 10). Claimant also contends that this document was "subsequently" filed in January 2012.
Nevertheless, the "Claim" filed on February 1, 2012 provides for an accrual date, December 4, 2009 and states the nature of the claim as an appropriation. It provides for a description of the premises appropriated in reference to the appropriation map filed by defendant. An unofficial copy of the acquisition map was attached to the filed claim. Finally, the claim recites damages in the amount of $3,480,315.00.
Claimant then states that a "Summons and Complaint" was filed and served in May 2012. Again, the Court of Claims Act does not provide for the filing of a summons and complaint but rather an appropriation case is initiated by a claim. A "Verified Complaint" was filed in this matter on June 4, 2012 and assigned claim number 121388 by the Clerk of the Court. Although mistitled, both parties treated this document as the claim in this action.
Claimant alleges in the Verified Complaint, hereinafter referred to as the second claim, that in October 2010, defendant condemned part of claimant's property which fronted State Route 111. The condemnation was part of a road widening project for State Route 111. Claimant refers to defendant's filing of an appropriation map entitled: East Islip-Smithtown Branch, S.H. 1208 in the Office of the Clerk of Suffolk County on December 4, 2009. Additionally, claimant states that "[i]n October of 2010, [defendant] did close the southerly easement driveway used by the claimant as part of their condemnation process."
Claimant is asserting that the claim accrued in October 2010 as part of defendant's road widening project. In the second claim, claimant describes the circumstances surrounding the claim and the location of the property affected. Claimant contends that defendant offered it $183,525.00 for taking approximately 9,500 square feet of frontage on Route 111. Claimant states that it did not accept the offer. The second claim asserts consequential damages in the amount of $3,296,790.00.
Accordingly, the Court finds that both the first and second claims filed in this matter satisfy the requirements of Court of Claims Act § 11 (b). Additionally, the Court must also be mindful of the paramount Constitutional requirement of just compensation under these circumstances (90 Front St. Assoc., LLC v State of New York, 79 AD3d 708 [2d Dept 2010]).
Therefore, for the foregoing reasons, defendant's motion to dismiss is denied.
July 18, 2016
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims