Opinion
# 2017-045-053 Claim No. 127695 Motion No. M-90835 Cross-Motion No. CM-90859
12-22-2017
SOUTHERN BLVD., LLC 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 sound barrier on neighbor's property. Claimants cross-move to amend claim.
Case information
| UID: | 2017-045-053 |
| Claimant(s): | SOUTHERN BLVD., LLC |
| Claimant short name: | SOUTHERN BLVD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127695 |
| Motion number(s): | M-90835 |
| Cross-motion number(s): | CM-90859 |
| 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: | December 22, 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; Claimant's Notice of Cross-Motion; Claimant's Affirmation in Opposition; and Defendant's Affirmation In Reply and in Further Support.
Defendant, the State of New York, moves this Court for an order dismissing a portion of claimant's appropriation claim under CPLR 3211 (a) (2), (7), and (8) because the Court lacks jurisdiction over the claim. Defendant argues that since the claim fails to state the nature of the claim and the damages allegedly sustained as the result of the State's installation of a sound barrier on an adjacent parcel of land the claim is jurisdictionally defective under Court of Claim Act § 11 (b). In the alternative, defendant moves for summary judgment pursuant to CPLR 3212 to dismiss that portion of the claim. In addition, defendant states that claimant is not entitled to severance or consequential damages as a result of the State's installation of a sound barrier on an adjacent parcel as a matter of law. Defendant contends that the damages alleged by claimant do not constitute a "de facto" appropriation as a matter of law.
In response, claimant brought a cross motion seeking an order amending the filed Claim in accordance with the content of the appraisal submitted on behalf of claimant.
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 claimant's 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 $200,000.
Defendant alleges that it became aware for the first time in April 2017, after the simultaneous exchange of expert reports, that claimant was alleging damages to its property as a result of the State's installation of a sound wall on neighboring property within 10 feet of claimant's northern property line.
Defendant argues that the claim lacks enough information for the State to have the opportunity to thoroughly investigate the portion of the claim concerning the State's installation of a sound barrier on the adjacent parcel of land. Additionally, defendant argues that claimant's failure to itemize the adjacent parcel in the claim and to detail the damages flowing from the State's installation of a sound barrier on that parcel renders the claim jurisdictionally defective.
Defendant also argues that the claim does not comply with the requirements of 22 NYCRR 206.6 (b) and (d) by failing to contain a specific description of the subject property giving its location and quantity. However, a failure to comply with 22 NYCRR 206.6 (d) does not deprive the Court of jurisdiction over the action. The Court may, for good cause shown and the interests of justice, waive compliance with any of the Uniform Rules of the Court of Claims, other than sections 206.2 and 206.3 (see 22 NYCRR 206.1 [b]).
In response, claimant sets forth that the only property appropriated from it is as set forth in the Claim and described by the maps attached thereto. In addition, the damages sought by claimant 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. Claimant also contends that there is no claim for damages to the property on which the sound barrier is being built. The sole claim is for damages to the property owned by claimant. Additionally, claimant argues that damages result as the easement contributed to the highway project that damaged the subject property.
At this point the Court finds it prudent to discuss the process surrounding a typical 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 is conducted.
Additionally, the State typically 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.
In a typical appropriation case damages are developed over time and the failure to include all the possible damages that may develop from the State's ongoing operations in a claim does not necessarily render a claim in violation of Court of Claims § 11 (b).
Given the facts and circumstances of this matter, the Court finds that the claim satisfies the requirements of Court of Claim Act § 11 (b). Additionally, the Court is 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]). Accordingly, defendant's motion to dismiss is denied.
Turning to defendant's motion for partial summary judgment, defendant argues that as a matter of law, claimant is not entitled to consequential damages as a result of the State's installation of a sound barrier on adjacent land and that portion of the claim should be dismissed. Defendant also argues that the damages asserted by claimant do not constitute a de facto appropriation as a matter of law.
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]).
Claimant argues that they it is seeking, inter alia, damages for the loss of aesthetics, privacy and marketability to the subject property, which is a corner property with frontage on both Southern Boulevard and Route 347, due to the installation of the sound barrier. Claimant also contends that consequential damages are appropriate because the easement contributed to the installation of the sound barrier.
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]). Claimant argues that consequential damages are appropriate because the easement contributed to the construction of the sound barrier. In support, claimant cites 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 the sound wall was not installed on land appropriated from claimant. As a result, defendant's installation of a sound barrier on the adjacent parcel of land does not give rise to consequential damages in this matter (id.). Thus, defendant's motion for partial summary judgment is granted in regard to that portion of the claim.
A de facto appropriation cause of action against a governmental defendant allows a landowner to recover just compensation from the government defendant when there has been a taking in fact of their property even though no formal exercise of the power of eminent domain has been attempted (Corsello v Verizon New York, Inc., 18 NY3d 777 [2010]). It is based upon a showing that the government has intruded onto the citizen's property and interfered with the owner's rights to such a degree that the conduct amounts to a constitutional taking (O'Brien v City of Syracuse, 54 NY2d 353 [1981]). A de facto taking can consist of either a permanent ouster of the owner or a permanent interference with the owner's use, possession and enjoyment of the property (Mickel v State of New York, 77 AD2d 794 [1980], aff'd 54 NY2d 858 [1981]).
As previously stated, the sound wall was not installed on land appropriated from claimant and does not give rise to damages in this matter. However, in regard to the trees removed by defendant, it appears as though they were situated on claimant's property. As such, a question of fact exists with regard to the trees.
Therefore, for the foregoing reasons, defendant's motion to dismiss is denied. Defendant's motion for partial summary judgment is granted to the extent of dismissing that portion of the action seeking consequential damages arising from defendant's installation of a sound barrier on the adjacent parcel of land. Defendant's motion is denied in all other respects. Accordingly, claimant's cross motion is denied as unnecessary.
December 22, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims