Extensions of Time to File Expert Reports in Eminent Domain Proceedings: Recent New York Court of Claims Decision

Often in eminent domain cases, one or both of the parties will require an extension of time during which to complete its expert reports, which include appraisals, engineering reports, and zoning reports.  And often, the parties will be able to amicably stipulate to the extension.  But, sometimes the parties will not be able to stipulate for a number of reasons, including that one party makes multiple extension requests or that one party requests an unreasonably long extension of time under the circumstances.

The Uniform Court Rules that govern extensions in eminent domain cases are 22 NYCRR § 202.61 for New York Supreme Court and 22 NYCRR § 206.21 for New York Court of Claims.  The standard for a grant of extension is “good cause shown,” § 202.61(a)(3), § 206.21(h)(1), and, in the Court of Claims, may also be “showing unusual and substantial circumstances[,]” § 206.21(h)(3).  “Good cause shown” is the more common standard that parties use.  The following case, though, illustrates the standard of “unusual and substantial circumstances.”

In a recent case, 154 Terry Road v. State, the Court of Claims (Hon. Gina M. Lopez-Summa) granted the State of New York’s application for a six month extension of time to file expert reports but only to the extent of three months.  UID # 2016-045-004, Claim No. 124599 (Ct. Cl. 2016).

In 154 Terry Road, the State took a permanent and temporary easement on the claimant’s property along Route 347 in Long Island.  The claimant brought a claim seeking $1 million in direct, severance and consequential damages.

The State requested from the court, and received, a six month extension of time to June 30, 2015.  The claimant thereafter stipulated to the State’s further request for an additional three month extension, to September 30, 2015.  Accordingly, the claimant filed its appraisal and engineering reports with the court on September 30, 2015.

Here’s where the facts of this case become interesting.

The State’s assistant attorney general assigned to this case resigned on October 2, 2015, and, before resigning, informed the incoming attorney of the September 30, 2015, exchange date, assured that the claimant would stipulate to another six month extension, and stated that the stipulation was sent to the claimant.  But, the incoming assigned attorney was out of the office from September 28, 2015, through October 5, 2015, and, upon returning to the office, learned that the stipulation was never sent to the claimant and that the claimant had already filed its reports on September 30, 2015.

The claimant stated that it received the stipulation after the exchange date and had no intention of signing it.  The State made an application to the court for an extension of time on October 21, 2015.  The Claimant opposed and argued that not only was there was no written or oral agreement to enter into a stipulation for an extension of time, but that it had never had a conversation with the State regarding a further extension.  The claimant also asserted that it received an email from the State that the condemnation project could still change.  The claimant argued that this could cause possible impacts to its property and that, in essence, the State had no intention of filing its reports and that the claimant was tricked into filing its reports, placing the claimant at a disadvantage with ineffective or incomplete reports based on older project plans.

The claimant’s arguments notwithstanding, the State argued that it met the standard of unusual and substantial circumstances in that its assigned attorney suddenly and unexpectedly resigned.

The court agreed with the State under the given facts and circumstances of the matter.  While the court limited its grant to a three month extension of time, it also directed that the claimant’s filed reports be returned to the claimant and that the State was prohibited from using the claimant’s reports filed on September 30, 2015, for any purpose in the case.

Posted in Eminent Domain, Recent cases
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