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William E. Dailey, Inc. v. State

Other Lower Courts

May 15, 2001

William E. Dailey, Inc., Claimant,
State of New York, Defendant. (Claim No. 99041.)

Page 304


Devorsetz Stinziano Gilberti Heintz & Smith, P. C. (Gerald J. Mingolelli, Jr., of counsel), for claimant.

Eliot Spitzer, Attorney General (John J. Pickett of counsel), for defendant.


Francis T. Collins, J.

Claimant's motion for an order striking the defendant's amended/supplemental appraisal filed on November 20, 2000 and the amended/supplemental geological report of Essex Engineering Science and Subsurface Exploration, P. C. (Essex) filed November 20, 2000 on the grounds that the appraisal and expert report were untimely filed pursuant to 22 NYCRR 206.21 (e) and (f) and upon the further ground that the amended appraisal report was based upon comparable sales information contained in claimant's appraisal filed September 15, 2000, thereby engendering prejudice to claimant, is denied.

This is a claim to recover $2,000,000 in direct damages and $1,300,000 in consequential damages resulting from the Department of Transportation's appropriation of approximately 20 acres of a stone quarry owned by the claimant and located on Farmer's Inn Road in the Town of Hoosick, New York, as part of the construction of the New York portion of the Bennington Bypass.

The claim was filed on September 28, 1998. Pursuant to 22 NYCRR 206.21 (b) the parties had six months from the filing of the claim (i.e., until Mar. 28, 1999) to file appraisals and other expert reports. Prior to the expiration of that time period, the defendant requested an additional six-month extension of the filing deadline. The Court, by letter dated March 1, 1999, granted an extension until September 28, 1999. The Court thereafter executed two orders filed July 20, 1999 and March 10, 2000 based upon separate stipulations of the parties extending the filing dates to March 24, 2000 and June 24, 2000, respectively. A motion by the defendant seeking yet another extension was granted by decision and order filed August 23, 2000. That motion, which was unopposed, extended the filing

Page 305

deadline to September 15, 2000.A subsequent telephonic request by the defendant for additional time to file the State's appraisal and other expert reports was denied.

Both parties filed appraisals and reports by the September 15, 2000 deadline and the Clerk of the Court accomplished an exchange of the documents pursuant to 22 NYCRR 206.21 (d) on September 18, 2000. Defendant's attorney claims that he was hard pressed to meet the September 15, 2000 filing date due to his position as co-counsel on a difficult and lengthy Indian land claim case being tried in the United States District Court for the Northern District of New York. He alleged, that in his absence from the office, certain discovery items received from claimant's attorneys were inadvertently filed away rather than being distributed to the State's experts and that some demanded discovery items were not received until two days prior to September 15, 2000. Upon the Court's refusal to allow yet another extension of the filing date, the State filed a " project appraisal" and a preliminary version of its geological report. Counsel alleges that the project appraisal, prepared pursuant to Eminent Domain Procedure Law § 303 prior to the State's taking of the property, utilized an incorrect valuation date of December 19, 1997 which pre-dated the appropriation date of July 22, 1998 by approximately seven months. It is further alleged that the filed appraisal did not consider the information garnered through discovery, including the deposition of claimant's principal which was held on July 29, 2000. The State contends that the project appraisal and the preliminary expert report were filed in order to meet the Court-imposed filing deadline and it was the State's intention to amend or supplement them rather than to rely upon the original documents at trial. Counsel alleges that he advised claimant's attorney of the State's intentions in this regard and assured him that every effort would be made to prevent the State's experts from reviewing the claimant's reports prior to the preparation of the State's amended or supplemental reports.

The defendant's attorney underwent hip replacement surgery on September 28, 2000. During his convalescence he was contacted at home by an associate attorney in the Attorney General's Real Property Bureau regarding the disclosure to the State's appraiser of certain information contained in the claimant's appraisal filed on September 15, 2000. Counsel alleges that he instructed the associate attorney to only release redacted copies of the claimant's raw sales data. He further alleges that the data on New York State sales, which is required

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to be filed pursuant to Real Property Tax Law § 33 (1-e), [1] was and is public information which was otherwise obtainable by defendant's experts. Counsel asserts and the affidavits of Donald E. Shehigian, James L. Wood and George F. Silver corroborate his allegation that no part of the claimant's appraisal or expert report other than the raw sales data relating to the claimant's comparable sales was disclosed to the State's expert prior to the ...

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