        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

791
CA 15-02106
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


JOHN FREDERICK AND JAN FREDERICK, DOING BUSINESS
AS FREDERICK FARM, CLAIMANTS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

NEW YORK STATE THRUWAY AUTHORITY,
DEFENDANT-APPELLANT.
(CLAIM NO. 121048.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FREDERICK A. BRODIE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

KNAUF SHAW LLP, ROCHESTER (AMY K. KENDALL OF COUNSEL), FOR
CLAIMANTS-RESPONDENTS.


     Appeal from an order of the Court of Claims (Renée Forgensi
Minarik, J.), entered March 23, 2015. The order, insofar as appealed
from, required defendant to obtain or pay the cost of the insurance
for the testing to be performed by claimants’ environmental expert.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and the motion is
granted in its entirety.

     Memorandum: In this real property tort action, claimants assert
that deicing agents have run off of the Thruway and onto their farm
located adjacent to the Thruway, thereby contaminating the soil and
water. In order to prove their claim, claimants sought to inspect,
test, and sample the Thruway shoulder and median adjacent to their
farm. The testing would include, among other things, air, soil, and
water testing and would involve “six visits to the site during the
winter and early spring.” Claimants located a professor who agreed to
perform the testing as their expert in exchange for permission to use
the tests in his research and teaching; however, neither claimants nor
the professor could afford the liability insurance routinely required
by defendant in connection with inspections performed on its property.

     Defendant moved for a protective order “requiring [c]laimants to
provide satisfactory liability insurance in connection with proposed
testing.” The Court of Claims issued an order stating, inter alia,
that “[d]efendant shall be required to obtain or pay the costs of the
insurance necessary to cover the anticipated testing activities” and
that “the amount of insurance necessary shall be as determined by
[d]efendant.” Defendant appeals from that part of the order requiring
                                 -2-                           791
                                                         CA 15-02106

it to obtain or pay the cost of the insurance for the testing to be
performed by claimants’ environmental expert, contending that it
violates Court of Claims Act § 27.

     As a preliminary matter, we reject claimant’s contention that
defendant’s appeal is moot. Contrary to claimant’s contention, the
record before us does not establish that all of the expert’s proposed
testing visits have taken place, and thus the appeal is not moot
because “the case presents a live controversy and enduring
consequences potentially flow from the order appealed from” (Matter of
New York State Commn. on Jud. Conduct v Rubenstein, 23 NY3d 570, 576).

     Turning to the merits, we agree with defendant that the court
erred in denying its motion in part and, further, directing it to pay
the cost of the insurance. Under Court of Claims Act § 27, “costs,
witnesses’ fees and disbursements shall not be taxed . . . by the
court to any party.” The court therefore did not “have authority to
direct defendant to pay the fees incurred by claimant[s] in retaining
an expert witness” (Russo v State of New York, 50 AD3d 1554, 1555, lv
denied 11 NY3d 702; see generally Martinez v State of New York, 111
AD3d 1445, 1446, lv dismissed 23 NY3d 956; Mihileas v State of New
York, 266 AD2d 866, 866). We therefore reverse the order insofar as
appealed from and grant the motion in its entirety.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
