Wikarski v. State

91 A.D.2d 1174, 459 N.Y.S.2d 143, 1983 N.Y. App. Div. LEXIS 16521

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1983
• Docket: Claim No. 64148
• Status: Published

Opinion

— Order unanimously affirmed, without costs, in accordance with the following memorandum: 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. v State of New York, 69 AD2d 362, ; see, also, NY Const, art VI, § 6; Court of Claims Act, § 9). (Appeal from order of Court of Claims, Moriarty, J. — dismiss claim.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Schnepp, JJ.