New York State Court of Claims

New York State Court of Claims

JWD REALTY v. THE STATE OF NEW YORK, #2001-014-543, Claim No. 102213, Motion Nos. M-62984, CM-63112


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
S. Michael Nadel
Claimant's attorney:
Siegel Fenchel & Peddy, P.C.By Saul R. Fenchel
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy Donald Shehigian, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 5, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 denied.

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 motion.

June 5, 2001
New York, New York

Judge of the Court of Claims