Opinion
# 2018-045-042 Claim No. 128115 Claim No. 130957 Motion No. M-91982 Cross-Motion No. CM-92221
11-09-2018
GDF REALTY LLC v. THE STATE OF NEW YORK
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. By: Saul R. Fenchel, Esq. Hon. Barbara D. Underwood, Attorney General By: Charles E. Gary, Assistant Attorney General
Synopsis
Claimant's motion to consolidate two appropriation cases. Claimant also seeks to extend time to file expert reports pursuant to Court Rule 22 NYCRR 206.21 (h) (2).
Case information
| UID: | 2018-045-042 |
| Claimant(s): | GDF REALTY LLC |
| Claimant short name: | GDF REALTY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128115, 130957 |
| Motion number(s): | M-91982 |
| Cross-motion number(s): | CM-92221 |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. By: Saul R. Fenchel, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Charles E. Gary, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 9, 2018 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) | 2019-045-003 |
Decision
The following papers were read and considered by the Court on these motions: Claimants' Notice of Motion; Claimants' Affirmation in Support with annexed Exhibits A-E; Defendant's Notice of Cross-Motion; Defendant's Affirmation in Support and Opposition with annexed Exhibits A-U; and Claimants' Affirmation in Opposition with annexed Exhibits A-1 to A-6.
Claimants, GDF Realty LLC (GDF) and Town-Line Car Wash, Inc., (Town-Line) have brought this motion, M-91982, seeking an order pursuant to CPLR § 602 and Court of Claims Act § 9 (5) consolidating claim 128115 with claim 130957 or joining them for trial. Claimants also seek an order pursuant to 22 NYCRR § 206.21 (h) (2) extending the time within which GDF may file its expert reports in claim 128115 so as to coordinate with the same time period for the filing of expert reports in the GDF/Town-Line claim 130957. Defendant, the State of New York, has brought a cross motion pursuant to CPLR 3211 (a) (1) seeking an order dismissing all GDF claims for damages resulting from the appropriation of land owned in fee by Long Island Properties, LLC (LIP).
Claim 128115 was filed on June 23, 2016. The claim is for the partial appropriation of property owned by GDF located at 762 Smithtown Bypass, Smithtown, New York, by the State pursuant to Section 30 of the Highway Law and Section 502 of the Eminent Domain Procedure Law. The property is further described on the Suffolk County Tax Map as District 0800, Section 107, Block 1, Lot 4.1. The property is located on the west side of Southern Boulevard near its intersection with Smithtown Bypass. Smithtown Bypass is also known as State Route 347. Even though the property has an address of 762 Smithtown Bypass, it is separated from Smithtown Bypass/Route 347 by an adjoining parcel of land owned by LIP. The LIP parcel is located at the western corner of Southern Boulevard and Route 347 and was acquired by LIP on May 25, 2004. The LIP property also has an address of 762 Smithtown Bypass. LIP owns and operates a gas station on its property.
On March 9, 2016, the GDF parcel was subject to a partial appropriation by defendant described on Acquisition Map 1390 R-1, Parcel 1481 (Fee) and Map 1391, Parcel 1482 (TE). On June 1, 2016, the State superseded the original fee map under Map 1390 R-1, Parcel 1481 (Fee). The takings consisted of one fee acquisition and one temporary easement.
Claim 128115 involves an approximately 31,000 square foot parcel of land improved with an approximately 4,400 square foot car wash facility. GDF is the fee owner of the property. GDF acquired the property from Five Boros Realty, LLC (Five Boros) on November 14, 2007. GDF is wholly owned by Alan Fleisher. GDF leased the property to Town-Line, a corporation also wholly owned by Alan Fleisher, for the operation of the Town-Line car wash.
Claim 130957 was filed on February 6, 2018. The claim lists GDF and Town-Line as claimants in that matter. The claim involves a partial appropriation of the LIP property in which claimants assert they have a property interest. On March 9, 2016, the LIP parcel was subjected to a partial appropriation by defendant described on Acquisition Map 1388 R-1, Parcel 1479 (Fee) and Map 1389, Parcel 1480 (TE).
Claimants allege that there is an easement, which they own and have the benefit of, that runs across the LIP property to Route 347. Claimants argue that this partial appropriation of the LIP parcel affected the easement in which GDF and Town-Line have an interest.
On March 31, 2004, LIP had entered into a mutual access agreement with Town-Line which provided for unrestricted traffic flow between the gas station and the car wash. In addition, during Town-Line's normal business hours, the agreement states that Town-Line shall have permanent and exclusive use of a certain portion of the LIP parking area at no charge. Further, Town-Line shall be entitled to maintain the sign which was overlooking Route 347. The mutual access agreement states that it shall remain in full force and effect notwithstanding a change of ownership of either of the entities owning or leasing said properties and shall inure to the benefit of Town-Line's and LIP's successors and permitted assigns. Five Boros was not a party to the Mutual Access Agreement.
In 2007, GDF purchased the parcel upon which the car wash was located from Five Boros. GDF then leased the premises to Town-Line on November 7, 2007 for the operation of the car wash.
Claimants' time to file its expert reports in claim 128115 expired on March 15, 2018, the date claimants' motion was filed. The time to file expert reports in claim 130957 expired on August 6, 2018. Claimants seek to consolidate the claims or join them for trial and extend the time to file expert reports in claim 128115 from March 15, 2018 to August 6, 2018.
The State's partial appropriations were for the purpose of constructing a turning lane for traffic proceeding south on Southern Boulevard to the Southern Boulevard/Route 347 intersection. The 347 Project is a design and build project. The State's appropriations were across the entire Southern Boulevard GDF frontage and Town-Line easement and the two curb cuts which service the car wash. Claimants state that in both claim 128115 and claim 130957 the easement would play a role in the valuation of the property and an overall determination of damages. Claimants contend that the claims grow out of the same set of facts as required by Court of Claims Act § 9 (5) for consolidation.
Defendant notes that on June 5, 2017, LIP served a claim on defendant for damages to its parcel. On March 13, 2018, LIP discontinued its claim against defendant. Defendant characterizes GDF's claim under 130957 as being one for damages to the GDF parcel for the appropriation of the adjacent LIP parcel.
On a motion to dismiss pursuant to CPLR 3211 (a) (1), the moving party must submit documentary evidence which resolves all factual issues and definitively disposes of claimant's claims (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Ralex Servs., Inc. v Southwest Mar. & Gen. Ins. Co., 155 AD3d 800 [2d Dept 2017]) . The motion will only be granted where the documentary evidence utterly refutes [claimant's] factual allegations, conclusively establishing a defense as a matter of law (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561 [2005]; Goshen v Mutual Life Ins. Co. Of NY , 98 NY2d 314 [2002]). The facts as alleged in the claim are accepted as true, and the claimant is afforded the benefit of every favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Nevertheless, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration (Nisari v Ramjohn, 85 AD3d 987, 989 [2d Dept 2011]).
Defendant contends that GDF is not entitled to any damages as a result of the partial acquisition of land owned in fee by LIP as a matter of law. Defendant argues that on the vesting date, documentary evidence proves that GDF did not hold any property interest in the LIP property. Defendant states that GDF was not a party to the mutual access agreement and that GDF was not listed as an interested party on the Notice of Appropriation for the LIP property. As a result, defendant argues that GDF cannot claim any direct damages resulting from the appropriation of portions of the LIP property.
The State has met its burden in establishing that GDF does not have a property interest in the LIP parcel. Five Boros, which was the owner of the GDF parcel at the time the Mutual Access Agreement was entered into between Town-Line and LIP, was not a party to the agreement. The easement was also not specifically delineated in the deed transferring ownership from Five Boros to GDF. Thus, the burden shifts to GDF to establish that it has a property interest in the LIP parcel through the mutual access agreement.
Claimants argue that prior to 2004, both the LIP parcel and the Five Boros parcel were unified in control and operation under inter-related companies. At that time Don's Kleen Machine Car Wash, Inc. was operating the car wash on the Five Boros parcel. Don's Kleen Machine Car Wash, Inc. was also under common ownership with LIP at that time and thus had access across the LIP parcel as well as use of the parking spaces located on the LIP parcel.
On March 31, 2004, Town-Line acquired the car wash operation from Don's Kleen Machine Car Wash, Inc. In connection with that purchase agreement, a mutual access agreement was entered into between Town-Line and LIP which established Town-Line's property interest in the LIP parcel. LIP acknowledged in the mutual access agreement that the mutual access agreement was a critical element of the purchase agreement. The mutual access agreement states that it will remain in full force and effect notwithstanding a change of ownership of either of the entities owning or leasing said properties and shall inure to the benefit of Town-Line's and LIP's successors and permitted assigns.
It is clear from the plain language of the mutual access agreement, as well as the surrounding circumstances, that the parties intended to create an easement not only in favor of the car wash which leased the entire parcel but also for the Five Boros dominant parcel over the LIP subservient parcel (see Menucha of Nyack, LLC v Fisher, 110 AD3d 1037 [2d Dept 2013]). When GDF purchased the adjoining parcel it did so pursuant to a deed which included, inter alia, all appurtenances and all the estate and rights of the seller. An easement is an appurtenance to the land benefitted by it (Will v Gates, 89 NY2d 778 [1997]).
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]). However, claimants have established that they have a property interest over the LIP parcel and are entitled to damages arising from the State's interference with that property interest. The Court's holding merely reflects that an appurtenant easement was created for the benefit of the Town-Line car wash and the GDF parcel over the LIP parcel.
Turning to claimants' motion to consolidate the claim 128115 with claim 130957 for trial, Court of Claims Act § 9 (5) permits the Court to order two or more claims growing out of the same set of facts to be tried or heard together, with or without consolidation, whenever it can be done without prejudice to a substantial right. Similarly, CPLR 602 [a] provides that:
"When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."
"It is well established that the power to order consolidation rests in the sound discretion of the court, and that where common questions of law or fact exist, consolidation is warranted unless the party opposing consolidation demonstrates prejudice to a substantial right" (Berman v Greenwood Vil. Community Dev., 156 AD2d 326, 326-327 [2d Dept 1989]; see also Robinson v 47 Thames Realty, LLC, 158 AD3d 780 [2d Dept 2018]). "Further, consolidation or joinder for trial is appropriate to avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts" (Robinson v 47 Thames Realty, LLC, 158 AD3d 780, 781 [2d Dept 2018]).
In the present matters there are common questions of law and fact. Additionally, defendant has failed to establish substantial prejudice that might result from consolidation for trial. Accordingly, the Court finds it appropriate to join the claims for trial.
Lastly, claimants are seeking an extension of time to file expert reports in these matters.
The Uniform Rules for the Court of Claims state that the parties are required to file with the clerk of the court the appraisal of each appraiser as well as the report of any other expert whose testimony is intended to be relied upon at trial within six months from the date of completion of filing and service of a claim. The rules also prescribe that a six-month extension may be requested by letter application. In claim 128115 the Court granted claimant's request for a six-month extension of time until December 23, 2016. Defendant filed its expert reports on December 1, 2017. Thereafter the parties submitted stipulations extending the time to submit expert reports until March 15, 2018. The Court so-ordered the stipulations.
Claimants then filed claim 130957 on February 6, 2018. Claimants state that they intend to file a combined appraisal and engineering report representing the integrated use encompassing both the GDF fee parcel and the easement in its valuation of damages. The expert reports were not initially due in that matter until August 6, 2018. As the instant motion was made prior to the expiration date of the previously granted extension, 22 NYCRR § 206.21 (h) (2) applies.
22 NYCRR § 206.21 (h) (2) states that:
An application for any further extension shall be made by motion on notice showing good cause and shall be made to the assigned judge prior to the expiration of any previous extension. The court in its discretion may grant the motion upon such terms and conditions as may be just. Alternatively, a further extension may be set forth in a stipulation which shall be signed by the attorneys and submitted to the assigned judge. The court in its discretion may "so order" said extension.
Given the facts and circumstances of this matter, the Court finds that claimants have been able to show good cause for a final extension to file expert reports in these matters. Additionally, suspension of interest is not warranted.
Therefore, for the foregoing reasons, claimants' motion seeking an extension to file expert reports is hereby granted. Accordingly, claimants shall have 60 days after the date this Decision and Order is filed to file expert reports in both claims. Additionally, claimants' motion for a joint trial is granted. Finally, defendant's cross motion to dismiss is denied.
November 9, 2018
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims