Opinion
May 27, 1981
Appeal from the Court of Claims.
Present — Simons, J.P., Hancock, Jr., Doerr, Denman and Schnepp, JJ.
Order unanimously reversed, without costs, and motion granted in accordance with the following memorandum: The State appeals from an order of the Court of Claims which denied its application to withdraw its previously filed appraisal reports in these appropriation claims and to substitute a new report. The court held that the State's application was untimely and that it did not present "unusual and substantial circumstances" warranting the relief requested (see 22 NYCRR 1200.25 [d] [3]). On this appeal the State has modified its application and seeks only leave to file an additional appraisal report, not to withdraw the original and substitute a new one. The action involves an appropriation claim for a parcel taken in 1975. The parties exchanged appraisals on the first parcel on December 15, 1977. A claim on the later appropriation was then filed, the claims were ordered jointly tried and supplemental appraisals exchanged. Trial was scheduled for March 17, 1980. On February 4, 1980, State personnel met with their appraiser to prepare for trial. He refused to discuss his reports with them or substantiate the values found in them. He also denied knowledge of some of the data and refused to analyze claimants' appraisal reports or compare his reports with them. The State alleges that the appraiser's attitude results from a dispute between the State and the appraiser over unrelated services and the charges for them. It contends that the appraiser will be a hostile witness leaving the State defenseless and depriving the court of the benefit of a reasoned opinion of value to compare with that of claimant's experts. We agree and believe this evidence supports the limited relief the State requests.