Sullivan v. State

• Court: New York Supreme Court — Appellate Division
• Citation: Sullivan v. State, 34 A.D.3d 443, 824 N.Y.S.2d 135, 2006 NY Slip Op 8108 (N.Y. App. Div. 2006)
• Decision Date: 08 November 2006
• Docket Number: 2005-09593.
• Parties: ROBERT G. SULLIVAN, Appellant, v. STATE OF NEW YORK, Respondent.

34 A.D.3d 443

824 N.Y.S.2d 135

2006 NY Slip Op 08108

ROBERT G. SULLIVAN, Appellant, v. STATE OF NEW YORK, Respondent.

2005-09593.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided November 8, 2006.

In a claim to recover damages for a de facto taking of a temporary easement, the claimant appeals from an order of the Court of Claims (Lack, J.), dated June 6, 2005, which granted the defendant's motion pursuant to CPLR 3211 (a) (1), (2), (5), and (7) to dismiss the claim.

Ordered that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, and the motion to dismiss the claim is denied.

In October 1997 the defendant State of New York took by eminent domain a temporary easement over a portion of a parcel of property then owned by the plaintiff Robert G. Sullivan and Pamela Liapakis, but now owned by Sullivan alone. According to a map filed in the office of the Nassau County Clerk, the temporary easement was "for use and exercisable during the elimination of the Mineola grade crossings until the approval of the completed work, unless sooner terminated if deemed no longer necessary for project purposes." In April 2000 the parties entered into an "agreement of adjustment" fixing the compensation due to Sullivan and Liapakis for the taking of the temporary easement. That agreement, by its terms, "supplemented" an "agreement for advanced payment" dated February 22, 1998, which is not part of the record. In July 2000 Sullivan and Liapakis executed a "release of owner" (hereinafter the release) with respect to their rights to compensation regarding the temporary easement, which was "in accordance with and pursuant to" the agreement of adjustment. The State released the property and purported to terminate the original temporary easement in June 2004, six years and eight months after taking it.

In October 2004 Sullivan filed this claim in the Court of Claims for compensation for the State's alleged de facto taking of a temporary easement. He claimed that the easement covered by the agreement of adjustment and release of owner was for a five-year period only, as purportedly set forth in an "explanation of acquisition/offer of settlement." He argued that the 20-month additional period during which the State possessed his property constituted a separate, de facto taking of an easement. The Court of Claims granted the State's motion to dismiss the claim on the ground that it was grounded in equity, and the Court of Claims does not have subject matter jurisdiction of claims sounding in equity. We reverse.

Sullivan claims that the agreements he and Liapakis entered into with the State and their release covered only the alleged five-year period of the temporary easement, and that his claim is only for the...