28 Misc. 2d 784 | N.Y. Sup. Ct. | 1961
Motion by plaintiff for an order requiring the defendant, Pearl Kochan, to answer certain questions which she refused to answer in an examination before trial; and for an order permitting the inspection on behalf of the plaintiff of certain documents to which the transcript of the examination before trial refers.
The data and information requested by the plaintiff pertain to the condemnation proceedings brought by it to acquire the premises owned by the defendant Pearl Kochan, for public use as part of the comonly called “ Power Project.”
It appears from the papers submitted to the court on the argument of the motion that on or about September 1, 1959 the defendant Pearl Kochan voluntarily surrendered to the plaintiff the possession of the premises involved.
At that time they were used and operated as a tavern and restaurant.
The petition for the condemnation of the premises was presented to the court on or about August. 16, 1960.
On or about August 3, 1960 the defendant consented to the appointment of appraisers to determine the value of the property taken from her, as stated above.
The plaintiff on or about September 1, 1960, served a notice of examination before trial pursuant to section 288- et seq. of the Civil Practice Act, rule 121-a of the Rules of Civil Practice and the applicable provisions of the Public Authorities Law.
The defendant filed a cross motion for an order to set the date for the trial of the proceeding to commence before the Commissioners of Appraisal.
The courts have repeatedly stated the rule to be that the owner of property which has been taken for a public use is entitled to receive the fair market value of the property taken, based upon the most advantageous use to which it can be put. The rule is so fundamental and well settled that it requires no citation of any particular authority.
Keeping in mind that general rule, and also recognizing the liberal trend of recent years to make available to any litigant data and information in possession of the other that will assist those upon whom the duty of determining “fair market value ” and “ the most advantageous use ” to which the condemned premises may be put, it is the opinion of this court that the motion of the plaintiff should be granted. Likewise, the cross motion of the defendant should be given favorable consideration compatible with the knowledge that it will take some time to complete the examination before trial.
The plaintiff’s motion is granted and the examination before trial is to be completed within 10 days after the service of a copy of the order to be entered hereon, and notice of entry thereof, upon defendant Kochan’s attorney.
The defendant’s motion is also granted and the hearing before the Commissioners of Appraisal shall be arranged for a date not later than 10 days after the completion of the typing of the transcript of the testimony taken during the examination as certified by the stenographer taking the same.