New York State Court of Claims

New York State Court of Claims

WEST WINDSOR v. THE STATE OF NEW YORK, #2002-019-576, Claim No. 104684, Motion Nos. M-65347, CM-65599


State's motion to dismiss granted; Claimant's cross-motion for extension of time to file claim is denied. Claimant failed to file Claim within EDPL 503 (A) time period so advance payment deemed as acceptance of the amount paid as full settlement of such claim; Claim dismissed

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):
Claimant's attorney:
HINMAN, HOWARD & KATTELL, LLPBY: Paul T. Sheppard, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
October 1, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves to dismiss this claim pursuant to CCA 10 (1), CPLR 3211, and EDPL 503 (A). Claimant cross-moves for an order nunc pro tunc extending its time for filing.

The Court has considered the following papers in connection with these motions:
  1. Claim, filed August 6, 2001.
  2. Notice of Motion No. M-65347, dated June 11, 2002, filed June 13, 2002.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated June 11, 2002, with attached exhibits.
  4. Letter from Paul T. Sheppard, Esq. to Court, dated and received August 2, 2002.
  5. Notice of Cross-Motion No. CM-65599, dated August 2, 2002, and filed August 5, 2002.
  6. Affirmation of Paul T. Sheppard, Esq., in support of cross-motion and in opposition to motion, dated August 2, 2002, with attached exhibits.
  7. Affirmation of James E. Shoemaker, AAG, in opposition to cross-motion and in support of motion, dated August 26, 2002, and filed August 28, 2002.

The following facts are undisputed. On June 4, 1998, the State filed a taking map in the Broome County Clerk's Office, thereby vesting it with title of the subject property. On June 29, 1998,[1] the State served upon Claimant a copy of the Notice of Acquisition and Map by certified mail, return receipt requested.[2] On July 23, 1998, the State made an advance payment of $425,000 pursuant to an Agreement for Advance Payment. On July 30, 2001, this Claim was personally served upon the Attorney General's office. On August 6, 2001, this Claim was filed with the Clerk of the Court.

The State's dismissal motion is based upon EDPL 503 (A) which states, in part, that:
[a] condemnee shall file within three years after service of the notice of acquisition or date of vesting, whichever, is later...a claim for damages with the clerk of the court....The failure of a condemnee to file a claim within such three year period shall be deemed an acceptance of the amount paid as full settlement of such claim.

Here, as between the date of vesting (June 4, 1998) and service of the Notice of Acquisition (June 29, 1998), the later date of June 29, 1998 governs. Thus, the three year limitation period set forth in EDPL 503 (A) expired on June 29, 2001. Accordingly, this Claim must be deemed untimely because it was personally served on July 30, 2001 and filed on August 6, 2001, both of which are beyond said three year period.

Claimant concedes the untimeliness of the service and filing of this Claim, but requests the Court exercise its discretion in permitting an extension of time to do so. However, Claimant's argument presupposes that this Court has the discretion to allow an extension and, assuming this to be true, that the facts of this case warrant exercise of the Court's discretion. However, the dispositive factor here is whether this Court has the discretion to allow such an extension in the first instance. Unfortunately, for the reasons that follow, this Court finds that it is without such discretion.

Claimant points to Grandinetti v Metropolitan Transp. Auth., 74 NY2d 785, and Metropolitan Transp. Auth. v Pizzuti, 156 AD2d 546, as authority for this Court possessing the discretion to permit the requested relief. To the contrary, the State contends that these two cases apply only to Supreme Court matters governed by EDPL 503 (B), rather than EDPL 503 (A) which applies in Court of Claims matters. The pertinent text of EDPL 503 (A) is as follows:
[i]n a claim for damages arising from the acquisition of real property under subdivision (A) of section five hundred one herein, a condemnee shall file within three years after service of the notice of acquisition or date of vesting, whichever is later, or within such time as is fixed by order of the court pursuant to sections five hundred five and five hundred twelve, a claim for damages with the clerk of the court having jurisdiction of the matter, and a copy of said claim upon such other official designated in the notice of acquisition to receive such service.

(Emphasis added).[3]

By comparison, EDPL 503 (B) states, in part, that "[a] condemnee shall, within the time specified by the Court, file a written claim...." In short, the State argues that EDPL 503 (B) permits discretion, while EDPL 503 (A) does not. The Court agrees. In this Court's view, the cases relied upon by Claimant are applicable solely to EDPL 503 (B) which does not govern in Court of Claims matters. Claimant has offered no authority from which this Court might conclude that the three year period specified in EDPL 503 (A) is subject to extension at the Court's discretion. In fact, the limited case law dealing with EDPL 503 (A) supports the contrary conclusion, namely that a claim which is not filed within said three year period will be dismissed as untimely. (Boyajian v State of New York, 293 AD2d 560; Real Art Furniture Corp. v State of New York, 28 Misc 2d 606). Consequently, Claimant's failure to file a claim before the expiration of the three year limitation period on June 29, 2001 results in this matter being deemed fully settled pursuant to EDPL 503 (A).

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-65347, is GRANTED; the advance payment is deemed the full settlement hereof; and Claim No. 104684 is DISMISSED; and Claimant's cross-motion for an extension of time to file the claim, Cross-Motion No. CM-65599, is DENIED.

October 1, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Claimant now concedes that the date of service of the Notice of Acquisition is inaccurately cited in the Claim itself as August 6, 1998. (Letter from Paul T. Sheppard, Esq., dated August 2, 2002).
[2]Pursuant to EDPL 502 (A), service of the notice of acquisition is permitted by either personal service or certified mail. To the extent that CCA 10 (1) can be construed as inconsistent (in that it references personal service only), EDPL 705 dictates that provisions of the EDPL govern over any other inconsistent provisions.
[3]Neither EDPL 505 or 512 are applicable in this case.