Opinion
# 2014-009-012 Claim No. 122489 Motion No. M-83719
04-08-2014
TARTARO v. THE STATE OF NEW YORK
COTE & VAN DYKE, LLP BY: Joanne Van Dyke, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Christopher Wiles, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion to dismiss this appropriation clam for untimely filed was denied.
Case information
| UID: | 2014-009-012 |
| Claimant(s): | ANTHONY TARTARO INDIVIDUALLY, 921-925 STATE STREET ASSOCIATES, INC., ANDY'S CYCLE SHOP INC., CHRISTINA TARTARO INDIVIDUALLY |
| Claimant short name: | TARTARO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122489 |
| Motion number(s): | M-83719 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | COTE & VAN DYKE, LLP BY: Joanne Van Dyke, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Christopher Wiles, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought this motion seeking an order dismissing the claim based upon untimely service and filing.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affirmation in Support, with Exhibits 1, 2
Attorney Affidavit of Joanne Van Dyke, Esq. In Opposition, with Exhibits 3
Claimants' Memorandum of Law 4
Attorney Affidavit of Woodruff Carroll, Esq., with Exhibit 5
In their claim, filed March 13, 2013, claimants make reference to an acquisition of property acquired by the State of New York pursuant to the Eminent Domain Procedure Law. Although not explicitly stated as an appropriation claim, the claim seeks damages for personal property on the premises allegedly converted and/or destroyed by the State; for the value of a building which was demolished on the property; and for the loss of a billboard situated on the property (and the revenue generated by said billboard).
Understandably, there is some confusion on the part of the Assistant Attorney General representing the State as to the basis of this claim, and the relief sought by claimants therein. However, as evidenced by the responses from claimants' attorneys, and further based upon the repeated references to the "Notice of Appropriation" dated March 12, 2010, it is the opinion of the Court that this claim should be treated as an appropriation claim under Section 10 (1) of the Court of Claims Act and Section 504 of the Eminent Domain Procedure Law. Accordingly, defendant's motion to dismiss is based upon the contention that this claim was not timely filed with the Clerk of the Court of Claims.
Pursuant to Section 10 (1) of the Court of Claims Act, a claim for the appropriation of lands by the State "shall be filed within three years after the accrual of such claim, or where title is vested by the filing of a description and map in the office of the county clerk or register, then within three years after personal service of a copy of such description and map and notice of filing thereof . . ." However, pursuant to EDPL § 502 (A), in all acquisitions in which the Court of Claims has jurisdiction the condemnor "shall serve, either by personal service or by certified mail, upon each condemnee a notice of acquisition and a copy of that portion of the acquisition map affecting the condemnee's property." (Emphasis added in both). The provisions of EDPL § 502 (A) supercede the personal service requirements of Court of Claims Act § 10 (1) (see EDPL § 705; Boyajian v State of New York, 293 AD2d 560 [2d Dept 2002]; Biz-Biz Corp. v State of New York, 29 AD3d 720 [2d Dept 2006]). Accordingly, the three-year period in which to serve and file an appropriation claim commences upon service of the notice of acquisition, whether accomplished by personal service or by certified mail.
In this particular matter, the claim was filed with the Clerk of the Court of Claims on March 13, 2013, but had been served upon the Attorney General on March 12, 2013. As set forth in the affirmation by claimants' former attorney (see Item 5), Mr. Woodruff Carroll explained that he had attempted to file the claim with the Clerk on March 11, 2013, but that a mistake had occurred in that the credit card used for payment of the filing fee was over its credit limit, and as a result the claim was not processed on that date. Mr. Carroll further explained that as soon as he was notified of this error, he immediately rectified the situation and paid the filing fee so that the claim was in fact filed on March 13, 2013.(1)
Both parties make reference to the "Notice of Appropriation" dated March 12, 2010 which was mailed to 921-925 North State St. Assoc., Inc. by certified mail. This Notice of Appropriation states that title to the affected property was vested in the State on that date, March 12, 2010. (See Exhibit A to Wiles Affirmation; Exhibit B to Van Dyke Affirmation).
Unfortunately, there is no affidavit of mailing to establish when the notice of appropriation was in fact mailed, nor is there any green receipt card(s) to establish when claimants actually received this notice. This Court will not and cannot presume that the notice was actually mailed on March 12, 2010, when such a presumption would result in the dismissal of the within claim for untimely filing. Accordingly, defendant's motion to dismiss must be denied.
Furthermore, even if this Court had determined that dismissal for untimely filing was required, late claim relief under Section 10 (6) of the Court of Claims Act is still available to claimants, since that provision specifically provides that for late claim relief, "a claim against the state arising under subdivision one of this section shall be deemed an action upon an implied contractual obligation." Since the statute of limitations for a contractual obligation is six years (CPLR Section 213[2]), claimants would still be entitled to institute a motion seeking late claim relief (see Corn Hill Landing, LLC v State of New York, 12 Misc 3d 874 [Ct Cl 2006]). Although claimants have made references to Section 10 (6) in their response papers, "the application for such permission shall be made upon motion returnable at any regular or special session of the court," and therefore any such a request for late claim relief is not properly before the Court at this time.
Finally, in the event that this Court denied defendant's motion to dismiss, defendant had requested a six-month extension of time in which to file its appraisal pursuant to the Uniform Rules for the Court of Claims, § 206.21 (h). Since this Court has determined that this claim is considered to be one for appropriation, and has in fact denied defendant's motion to dismiss, defendant's request for this extension is granted, and will be incorporated herein.
Therefore, based upon the foregoing, it is
ORDERED, that defendant's motion to dismiss (M-83719) is hereby DENIED; and it is further
ORDERED, that within six months from the date of filing of this Decision and Order, both parties must file their appraisals with the Clerk of the Court pursuant to Section 206.21 (h), unless within such time a further extension is requested and granted pursuant to Section 206.21 (h) (2).
April 8, 2014
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims