The following papers were read on the claimant's motion seeking a determination
that the claim was timely served, and on the defendant's cross motion to dismiss
the claim: Notice of Motion, Affirmation in Support, Affidavits (6) in Support,
and exhibits annexed; Notice of Cross Motion, Affirmation and Exhibits annexed;
Answering Affirmation; Reply Affirmation, exhibit annexed.
Upon the foregoing papers, and after an evidentiary hearing, the motion and the
cross motion are denied.
The parties do not disagree that title to the property which is the subject of
this appropriation claim vested in the defendant on January 12, 1994, pursuant
to a filing with the Suffolk County Clerk. The issue presented by this motion
and cross motion is whether the filing and service of the claim, on April 3,
2000, was timely.
Section 502(A) of the Eminent Domain Procedure Law (as it was in effect with
respect to the claim herein) required the defendant, within 90 days after the
aforementioned filing with the County Clerk, to serve the claimant with a
notice of acquisition and the acquisition map; section 503(A) of the Eminent
Domain Procedure Law, in pertinent part, requires that the claim be filed
"within three years after service of the notice of acquisition or date of
vesting, whichever is later." Section 10(1) of the Court of Claims Act
provides: "where title is vested by the filing of a description and map in the
office of the county clerk" a claim must be filed "within 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."
It is the claimant's contention that the claim was timely because the service
required by EDPL §502(A) and by Court of Claims Act §10(1) never took
place. The defendant contends that even if such service did not take place, the
claim is untimely because it was filed more than three years after the claimant
became aware that its property was being taken, and, in addition, because the
claimant waived any claim it may have had against the defendant.
The only indication in the record before the Court that the service required by
EDPL §502(A) and by Court of Claims Act §10(1) was effected is
contained in an affidavit of service (annexed as Exhibit 7 to the claimant's
submission) which asserts that personal service of a "notice of appropriation"
and maps was made upon "James P. Biersmith, Sales Manager" on April 7, 1994. In
addition, it appears that, in response to claimant's Notice to Admit, the
defendant has denied that it failed to serve the claimant with a notice of
acquisition or appropriation map.
After review of the papers submitted, the Court held an evidentiary hearing on
the issue of whether personal service was made on the claimant on April 7, 1994.
At the hearing, Mr. Biersmith testified, as did Mr. William Donaldson, a general
partner of the claimant, and documents were received in evidence. Upon
consideration of the entire record before the Court, the claimant has overcome
any presumption of service based upon the affidavit of service. DeZego v
Bruhn, 67 NY2d 875. The Court finds, for purposes of the instant motion and
cross motion, that the service required by EDPL §503(A) and Court of Claims
Act §10(1) was not effected.
Counsel for the defendant does not take issue with the foregoing conclusion.
Rather, it is the defendant's contention that the claim is untimely because it
was filed more than three years after May of 1994, when the claimant
unquestionably had actual notice that its property had been taken. The
defendant has not offered any legal support for its position, the effect of
which would be to ignore the service requirements of the cited statutory
provisions; and to substitute in their place a factual inquiry in every such
claim. The defendant's reliance on Ebbets v State of New York, 64 AD2d
794, affirmed 47 NY2d 973, is misplaced. While the Court in that case
relied upon the fact that the claimant had actual notice of the taking, it did
so as a basis for upholding the validity of statutorily authorized substituted
service upon the claimant, where personal service had been unsuccessfully
attempted. That was not the case here.
The other basis for the defendant's motion to dismiss the claim is that by the
terms of an "Agreement for Advance Payment" (Exhibit A annexed to defendant's
submission, dated June 26, 1992) entered into between the defendant and the
claimant, that agreement has ripened into a full and complete settlement of the
instant claim. The defendant's position is based upon Paragraph 9 of the
agreement, in which 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 . . . .
But the three year period set forth in Court of Claims Act §10(1) does not
begin to run until the service it requires has been made. Since the personal
service required by §10(1) was not effected, nor is there anything in the
record to indicate that it was attempted, there has not been a "full and
complete settlement" of the claim.
For the foregoing reasons the defendant's cross motion to dismiss the claim is
The relief sought by the claimant, a determination that the claim was timely
served and filed, is declaratory in nature; this Court is without jurisdiction
to grant such relief. Nonetheless, the foregoing determination with respect to
the defendant's cross motion resolves the issue presented by the claimant's