New York State Court of Claims

New York State Court of Claims

LASSITER v. STATE OF NEW YORK, #2003-018-198, Claim No. 105613, Motion No. M-64933


Synopsis


Defendant brought a motion to dismiss the claim for lack of subject matter jurisdiction and the failure to timely serve its notice of intention or claim within the statutory time limitations. After oral argument and submissions of memoranda of law by the parties, the Court finds that claimant had or has a contractual right to the timber, not a real property interest. The claim is untimely and defendant's motion to dismiss must be GRANTED.

Case Information

UID:
2003-018-198
Claimant(s):
LASSITER PROPERTIES, INC. The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
LASSITER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105613
Motion number(s):
M-64933
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
POKLEMBA, HOBBS & ULASEWICZ, LLCBy: THOMAS A. ULASEWICZ, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: PETER A. SPARAGNA, ESQUIREAssociate Attorney
Third-party defendant's attorney:

Signature date:
January 29, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moved this Court to dismiss the claim for lack of subject matter jurisdiction and the failure to timely serve its notice of intention or claim within the statutory time limitations. The Court requested memoranda of law and oral argument which was heard on September 18, 2002.

The claim, filed and served on February 15, 2002, alleges that the State interfered with timbering rights granted to claimant by deed dated December 21, 1988. The chain of conveyances of these rights originated in a deed and accompanying contract[1] dated September 24, 1925. Defendant argues that because claimant failed to serve the Attorney General with a notice of intention within 90 days of the accrual date of October 27, 2000, and the claim was filed and served on February 15, 2002, it is untimely and must be dismissed. Defendant relies on Court of Claims Act §§10(3) or 10(4) which set forth the time within which a claim for negligence or breach of contract must be served and filed.[2] Section10(3) requires filing and service within 90 days for negligence, while §10(4) allows six months for breach of contract. Both limitations are extended if a notice of intention is served upon the Attorney General within the 90 days or six months, respectively. No notice of intention was served by claimant.

Claimant responds that the cause of action set forth is one of appropriation of land by the State which is governed by Court of Claims Act §10(1). That section gives claimant three years to file and serve a claim. Obviously, the result of the motion hinges upon which cause of action is set forth and that determination is controlled by what interest claimant received by the 1988 conveyance: a contractual interest or a real property interest.

The 1925 deed from Oval Wood Dish Corp. (hereinafter referred to as Oval Wood) to F. L. Carlisle and Co., (hereinafter referred to as Carlisle) reads, "Excepting and expressly reserving...all the timber of all kinds and descriptions now standing or lying on the above described premises, together with the right to enter on said premises, for the purpose of removing said timber until time as the lands are flooded or overflowed." These are the same rights that were conveyed to claimant. In describing the lands conveyed, the deed read, "All those certain tracts or parcels of land, situate in Township number eight (8) Hollywood, and more particularly bounded and described as follows: All those tracts or portions of the following named lots in said Township as would be flooded or overflowed by creating a reservoir having a flow line at U.S. Geological Survey Elevation Fourteen Hundred and Sixty (1460) feet."

Apparently, the flow line of 1460 feet is the boundary line of the property being conveyed by Oval Wood to Carlisle. The rights to cut timber retained by Oval Wood were ultimately obtained by claimant and Carlisle is the predecessor in interest of the State. The State obtained title by deed recorded November 13, 2000, the same lands on which claimant asserts timber cutting rights were acquired by the State through a sale/gift of lands from Land Management Development, Inc., a subsidiary of Niagara Mohawk Power Corporation (hereinafter NiMo). These lands were to be included as part of the Forest Preserve. Claimant, on notice of this prospective transfer to the State of the lands on which it held certain timber rights, sent a letter to the Adirondack Park Agency (hereinafter APA) to put it on notice of its reserved timber rights. By letter dated October 27, 2000, the Attorney General's Office advised claimant that the State did not recognize any reserved timber rights on these parcels. Since that date, the State has opposed and prevented claimant from exercising any timber rights.

The State alleges, that based upon the language in the deed, claimant's rights were extinguished by flooding of the property. Since the rights claimant received were not in perpetuity, any injury claimant may have suffered would not be based upon a real property interest as the Court of Appeals found in Fischer v Zepa Consulting A.G., 95 NY2d 66, but by tortuous interference with contractual rights which has a three-year statute of limitations but would fall under Court of Claims Act §10(3). Therefore, the claim would be untimely.

The claimant argues that the flooding must reach the 1460-foot level for its rights to be extinguished. Although some flooding has occurred, claimant has harvested timber from the non-flooded areas in 1998, 1999, and 2000. Furthermore, claimant has sold timber harvesting rights on a portion of his land to a third party (in 1998) who proceeded to sell them to defendant in 1999. These facts may ultimately prove claimant's right to cut timber still exists but do not affect what type of right claimant has or had.

The most recent and similar case on this point is Fischer v Zepa, supra, decided by the Court of Appeals. In that case, the right to cut timber was granted in perpetuity with a permanent easement to enter the property to remove the cut wood. The deed also conveyed the timber then in existence as well as any that came into existence thereafter. The Court found that a freehold estate was granted based upon the perpetual right to cut standing and growing timber with the permanent easement. The rights granted to this claimant are not permanent or perpetual, there is a terminating event. The deed addresses only timber "now standing or lying" on the premises,[3] not growing timber. These distinctions lead to the conclusion that claimant had or has a contractual right to the timber, not a real property interest. As such, the filing of the claim is untimely and defendant's motion to dismiss must be GRANTED.

January 29, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following in deciding this motion:

Notice of motion......................................................................................................1

Affirmation of Peter A. Sparagna, Esquire, Assistant Attorney General

in support of motion to dismiss....................................................................2


Affirmation of Thomas A. Ulasewicz, Esquire, in opposition

with exhibits attached thereto........................................................................3


Memorandum of Law on behalf of claimant..............................................................4


Memorandum of Law on behalf of defendant............................................................5

[1]The copy of the contract provided with the claim is not executed and the Court has not been provided with an executed copy.
[2]The State refers to these time limitations as statutes of limitations.
[3]Claimant argues that the intent of the parties is more clearly set forth in the concurrently executed contract. The Court can consider evidence only in admissible form (CPLR 3212[c]).