DocketNumber: Claim No. 32154
Citation Numbers: 205 Misc. 168
Judges: Ryan
Filed Date: 1/15/1954
Status: Precedential
Modified Date: 2/5/2022
By formal notice served on the claimant August 29, 1952, the State of New York has appropriated 2.445 acres of claimant’s industrial property, located at 15 Forest Avenue in the city of Buffalo, for the Niagara Section of the New York State Thruway and claimant has filed its claim, pleading:
10. The particulars of the claimant’s damages are as' follows:
2.445 acres (106,518 sq. ft.) of land and improvements
appropriated............................... $700,000.00
.724 acres of remaining land damaged ............. 45,000.00
Total................................ $745,000.00
1. What amount of the alleged damage of “$700,000.00 ” is apportioned to the “ land ” and what amount is apportioned to “ improvements ”.
2. What amount of the alleged as damage to “ improvements ” is apportioned to the buildings and what amount to equipment, facilities, etc.
3. Name, locate and properly identify and describe the various buildings or improvements alleged to be affected by the appropriation, together with the value or damage alleged to have been sustained on each item.
4. Name, describe and identify, together with its present location, such improvements, other than buildings, which are set forth as “ improvements appropriated
5. Set forth in detail, describing, identifying and locating such contents and equipment, etc., located in the various buildings and on the property appropriated, which claimant is contending or will contend, is personal property, together with the value placed upon each item.
6. Set forth in detail, describing, identifying and locating fully such contents and equipment, etc., located in the various buildings and on the property appropriated, which claimant is contending or will contend, is part of the realty, together with the value placed upon each item.
Claimant has moved, in accordance with subdivision (a) of rule 115 of the Rules of Civil Practice, to vacate or modify the notice given on the basis that “ the demand is too far reaching in that it seeks detail which might be the subject of opinion evidence to be elicited from experts in the value of real estate and otherwise seeks a detailed statement of evidentiary matter which would be unduly burdensome to the claimant and which is not properly the subject of a bill of particulars. Furthermore the demand seeks to require the claimant to detail its damages in a way not required of the claimant in its proof of damages upon the trial of the claim.”
While unusual in an appropriation case, a bill of particulars may properly be demanded and the condemnor should be furnished with sufficient particularization to enable it to prepare properly for trial. (Genco v. State of New York, 178 Misc. 444.) Claimant asserts that it has in its pleading “ provided * * * the precise breakdown required” by this court in the Genco case. Claimant further asserts that inasmuch as the defendant herein did the appropriating, and is in possession of the appropriated land and fixtures, it is “ at least as well able as the claimant to determine what is realty and what is personalty and must do so as part of its preparation for trial of the claim irrespective of what the claimant might claim, since the State must pay for what and only what it appropriates.”
Neither the claim, nor the attached official copy of the appropriation map and description of the property appropriated,
As to paragraphs 1 and 2 of the Attorney-General’s demand, we believe that the apportionment of values as between land and buildings is a matter of opinion evidence which will develop upon the trial, the details of which claimant need not disclose to defendant before trial. (Dwyer v. Slattery, 118 App. Div. 345.)
As to paragraph 3, the name, location and identification of each building affected by the appropriation ought to be known to the appropriating agent. In respect to its value or the conse
Paragraphs 1, 2 and 3 of the demand for a bill of particulars are vacated and set aside. Paragraphs 4, 5 and 6 are modified as indicated. Enter order accordingly.