Opinion
January 20, 1978
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Dillon, Hancock, Jr., and Witmer, JJ.
Order and judgment unanimously affirmed, without costs. Memorandum: Although the referee made an erroneous statement that the defendant had the burden to prove that plaintiff did not bargain in good faith (Matter of Lockport Buffalo R.R., 77 N.Y. 557, 563; Matter of Marsh, 71 N.Y. 315, 318-319; Matter of Bronx Parkway Comm. [Cipolla], 176 App. Div. 717, 720-721; Golowich v Union Free School Dist. No. 8, Town of Greenburgh, 25 Misc.2d 867, 872-873), we read his decision as recognizing that plaintiff had that burden and had established prima facie case of bargaining in good faith for these properties, and that defendants failed to meet their ensuing burden of going forward to overcome such proof. The record shows that plaintiff made offers to each of the defendants or their authorized representatives and were sternly rebuffed, either with an absolute refusal to negotiate or with such an exorbitant demand as to be tantamount to refusal; and this evidence made its prima facie case of bargaining in good faith (see Matter of Prospect Park Coney Is. R.R. Co., 67 N.Y. 371, 377-378; County of Orange v Stillman, 251 App. Div. 857, 858; Dormitory Auth. of State of N Y v 59th St. 10th Ave. Realty Corp., 62 Misc.2d 174, 178-179; City of Utica v Damiano, 22 Misc.2d 804, 809). The easement sought by plaintiff was definite, minimizing the likelihood of consequential damages, and the principle controlling in Kravec v State of New York ( 40 N.Y.2d 1060) is not applicable herein (see Lorig v State of New York, 58 A.D.2d 734, 735). We do not hold that the issue of failure to bargain in good faith with respect to consequential damages can never be raised in a jurisdictional proceeding. In order to avoid frustrating the policy of law against undue delay in condemnation proceedings, however, we suggest that only where defendant's refusal to agree is based upon a substantial showing of consequential damages and his reasonable estimate of the value thereof, should that issue be injected into the jurisdictional proceeding. Of course, the issue of consequential damages can still be litigated later before the commissioners of appraisal (see Home Gas Co. v Kuruc, 206 Misc. 130, 135-136).