Wikarski v. State
| Decision Date | 21 January 1983 |
| Parties | Walter WIKARSKI, as Administrator of the Estate of Julia Wikarski, Deceased, Appellant, v. The STATE of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Michalek, Montroy & Aman by James Michalek, Lackawanna, for appellant.
Robert Abrams, Atty. Gen. by Dennis Hurley, Albany, for respondent.
Before HANCOCK, J.P., and CALLAHAN, DENMAN, BOOMER and SCHNEPP, JJ.
Claimant appeals from an order of the Court of Claims which dismissed her claim against the State of New York on the ground of res judicata (CPLR 3211, subd. [a], par. 5). She seeks to recover damages resulting from the State's use of a permanent easement over her property and a declaration that the State is under a duty to maintain a retaining wall within the easement area. We affirm the dismissal of the first cause of action for reasons stated at the Court of Claims, Moriarty, J., and make the following observations. Giving the claim a liberal construction and accepting its material allegations and all reasonable inferences that may be drawn therefrom as true, we find that the allegations set forth in the claim are identical with those in an earlier claim made by claimant against the State upon which she was awarded direct and consequential damages for the appropriation of the easement. Absent a claim that the State prevented claimant from repairing the wall or is otherwise culpably responsible for continuing damage to her property, she has no further claim for damages arising from the State's use of its easement. In addition, we find that claimant's second cause of action seeks a declaratory judgment which the Court of Claims does not have authority to render (see CPLR 3001; Fehlhaber Corp. & Horn Constr. Co. v. State of New York, 69 A.D.2d 362, 374, 419 N.Y.S.2d 773; see, also, N.Y. Const. art. VI, § 6; Court of Claims Act, § 9).
Order unanimously affirmed, without costs.
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