Opinion
# 2014-010-094 Claim No. 124909 Motion No. M-85808
01-08-2015
THOMPSON v. THE STATE OF NEW YORK
ANDREW P. THOMPSON Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Dian Kerr McCullough, Assistant Attorney General
Synopsis
Defendant's pre-answer motion to dismiss granted, no legal interest established or asserted by claimant.
Case information
| UID: | 2014-010-094 |
| Claimant(s): | ANDREW P. THOMPSON |
| Claimant short name: | THOMPSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124909 |
| Motion number(s): | M-85808 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | ANDREW P. THOMPSON Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Dian Kerr McCullough, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 8, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-3 were read and considered by the Court on defendant's pre-answer motion to dismiss:
Notice of Motion, Supporting Affirmation and Exhibits..........................................1
Claimant's Response Filed November 10, 2014 and Exhibit, Claimant's Response Filed November 17, 2014, Claimant's Objection and Demand for Sanctions and Exhibits Filed December 12, 2014.................................................................
..........2
Defendant's Reply Affirmation and Exhibit..............................................................3
Defendant brings this pre-answer motion to dismiss Claim No. 124909 which alleges that in the Spring/Summer of 2014, the New York State Department of Transportation (NYSDOT) performed brush cutting in the "Planted Area" located "adjacent and proximate [emphasis added]" to claimant's property at 2 Requa Street, in Mount Pleasant (Defendant's Ex. A; Claim ¶¶ 2, 3). The "Planted Area" is defined by claimant as a sloped rectangular area approximately 25 feet wide and approximately 100 feet long and situated between "the boundary of [claimant's property] and the NYSDOT right of way along Route 9 [emphasis added]" (id.). Claimant alleges that in 2010 and 2011, he "remediated invasive species . . . in the Planted Area and planted specimens approved by State and Federal DOTs . . . including plants approved in NYSDOT guidance" (Claim, ¶ 2). According to claimant, in 2013 he advised NYSDOT not to cut the Planted Area where he had attached labels to the plants stating: "DO NOT DISTURB THIS ROW OF PLANTS. A Thompson, 2 Requa St. These Plants Conform to State and Local Law" (id.). Claimant alleges that in 2013, a local resident, Toni Bravato, requested that NYSDOT cut in the Planted Area, and thereafter NYSDOT performed several cuttings.
Claimant seeks $300,000 in damages for the cutting of the Planted Area by NYSDOT. Specifically, claimant asserts that the destruction of the plants in the Planted Area has defeated "the purposes of creating for Claimant a hedge and visual, sound, privacy, and pollution barrier to a very heavily trafficked Route 9" and has resulted in "the loss in property value to Claimant as a result of replacing an important screen and barrier to a heavily trafficked highway with what is effectively nothing more than a waste area of disturbed land" (Claim, ¶ 5). The claim also identifies nine NYSDOT employees and demands that they be "removed from office or employment with Defendant with all compensation and benefits, accrued or otherwise, forfeited" due to their "gross incompetence, breach of the peace, and perhaps criminal conduct"(id. at ¶ 7).
Defendant moves to dismiss the claim on the ground that claimant has no title or legally enforceable interest in the "Planted Area" and therefore cannot obtain money damages for its alleged cutting of that area. The motion is supported by the affidavit of Michael J. Parrella, a NYSDOT Regional Land Surveyor who avers, with supporting documentation, that the Planted Area is within the highway boundary to which claimant has no title (Defendant's Ex. B). Claimant does not assert a legal interest nor does he establish any legally cognizable right to recovery. Additionally, this Court does not have the power to order the dismissal of State employees. Accordingly, defendant's motion to dismiss Claim No. 124909 is hereby GRANTED.
To the extent that claimant objects to defendant's motion and seeks an order sanctioning the Assistant Attorney General $25 for obtaining an adjournment from the Court so that defendant could submit copies of the maps referenced in Parrella's affidavit, claimant's arguments are unavailing and his request is DENIED (see Ortolani v Town of Hempstead, 256 AD2d 451, 452 [2d Dept 1998] ["(t)he law is clear that the granting of an adjournment is a matter resting in the sound discretion of the trial court."]).
January 8, 2015
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims