New York State Court of Claims

New York State Court of Claims

BOYAJIAN v. THE STATE OF NEW YORK, #2001-014-513, Claim No. 102239, Motion Nos. M-62399, CM-62599


Synopsis


The defendant's motion to dismiss the claim as untimely is granted; the claimant's cross-motion seeking permission to file a late claim for the appropriation of property is granted.

Case Information

UID:
2001-014-513
Claimant(s):
INGER BOYAJIAN, as Assignee of JAMES E. VACCARO and ANTHONY FRATELLI
Claimant short name:
BOYAJIAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102239
Motion number(s):
M-62399
Cross-motion number(s):
CM-62599
Judge:
S. Michael Nadel
Claimant's attorney:
Flower, Medalie & MarkowitzBy: Donald Markowitz
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John J. Pickett, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 20, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The following papers were read on the defendant's motion to dismiss the claim and on the claimant's cross-motion seeking permission to file a late claim: Notice of Motion, Affirmation in Support and Exhibits annexed; Notice of Cross-Motion, Affirmation and Exhibits annexed; Reply Affirmation.


Upon the foregoing papers, the defendant's motion to dismiss the claim as untimely is granted, and the claimant's cross-motion seeking permission to file a late claim is granted.

The parties do not disagree that this claim, seeking compensation for the appropriation of property, was filed more than three years after service of the notice of acquisition (EDPL §503[A]). It is the claimant's position, however, that the service of the notice of acquisition by certified mail, return receipt requested, was not effected in accordance with the provisions of EDPL §502(A), which, counsel for the claimant argues, permits service by certified mail, return receipt requested, only after first attempting personal service.

A plain reading of the statutory provisions does not support the claimant's interpretation. The requirement of attempting personal service is clearly set forth in paragraphs (2) and (3) of EDPL §502(A) as a prerequisite to effecting alternative service by filing the notice of acquisition in the office of the County Clerk, which was not the method of service used herein. To the extent that the claimant relies on the provision in Court of Claims Act §10(1) which permits alternative service "if personal service cannot be made within the state," it is inconsistent with the provisions of EDPL §502. Section 502 of the EDPL is controlling. See, EDPL §705.

The claim was filed more than three years after service of the notice of acquisition; the defendant's motion is granted; the claim is dismissed.

The claimant's cross-motion, seeking permission to file a late claim,[1] was filed within the relevant statute of limitation, so the Court has jurisdiction to grant relief under §10(6), and has considered the factors listed therein. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981. Although no proposed claim has been submitted, the Court has considered Claim No. 102239 as the proposed claim.

The principal basis for the defendant's opposition to the claimant's application is that by the terms of the "Agreement for Advance Payment" entered into between the defendant and the claimant's assignor, that Agreement has ripened into "a full and complete settlement" of the instant claim. See, exhibit annexed to defendant's submission, dated December 4, 1995.

In Paragraph 9 of that Agreement it is stated:
[P]rovided no claim is filed by the Claimant in the Court of Claims within the statutory time limit set forth in the Court of Claims Act, then, upon the expiration of that time, this agreement for advance payment shall automatically become an Agreement of Adjustment in full and complete settlement of all claims . . . and Claimant shall be deemed to have released his claim against the State . . . .
The statutory time limit for an appropriation claim "where title is vested by the filing of a description and map in the office of the county clerk" is set forth in Court of Claims Act §10(1):
three years after personal service of a copy of such description and map and notice of filing thereof or if personal service cannot be made within the state, then within three years after the filing of the description and map and the recording of notice of filing thereof.
The inapplicability of Court of Claims Act §10(1) to the claim herein with respect to the issue of timeliness (discussed, supra) is required by EDPL §705 by virtue of which the provisions of EDPL §502(A) are controlling. But for the purpose of determining the time period within which the failure to file a claim results in a "full and complete settlement" of the claim pursuant to the Agreement for Advance Payment, the only pertinent time period in the one set forth in Court of Claims Act §10(1). That time period does not begin to run until service of the notice of acquisition is made in accordance with its terms, which do not permit service by certified mail, return receipt requested. There is nothing in the record to indicate that the notice of acquisition was personally served (see, CPLR 308, 312-a), or that personal service could not be made within the State. Thus, there has not been a "full and complete settlement" of the claim.

Although the claimant has offered no excuse for the delay in filing the claim, the other statutory factors warrant the exercise of the Court's discretion to permit the late filing of the claim. The State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim; the failure to file a timely claim has not resulted in substantial prejudice. The claimant has no other available remedy. Finally, a claim for the appropriation of property by the State, such as the one herein, cannot be said to be without merit.

Having considered the relevant statutory factors, Bay Terrace, supra, it is therefore

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted; claimant shall file the claim in the same form in which it was filed as Claim No. 102239 in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 30 days of the date of the filing of this Order.


February 20, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1]Specifically, the claimant seeks "an Order, pursuant to Court of Claims Act Section 10(6), allowing the claim herein to proceed, notwithstanding any finding by this Court that it was filed beyond the three year period provided by EDPL Section 503(A) and Court of Claims Act Section 10(1). The Court is without authority to grant the relief requested, but has considered the claimant's application as one seeking permission to file a late claim.