New York State Court of Claims

New York State Court of Claims

81 AND 3 OF FLORIDA v. THE STATE OF NEW YORK, #2003-031-099, Claim No. 102175, Motion No. M-66375


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:
Defendant's attorney:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 5, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Defendant for summary judgment dismissing the claim:
  1. Defendant's Notice of Motion, filed February 5, 2003;
  2. Affidavit of Richard B. Friedfertig, Esq., sworn to February 4, 2003, with attached exhibit;
3) Affidavit of Richard M. Earne, Esq., sworn to April 23, 2003, with attached exhibits;
  1. May 29, 2003 correspondence from Lawrence C. Brown, Esq.;
5) June 11, 2003 correspondence from Richard B. Friedfertig, Esq.;
6) Filed documents: Claim. Upon the foregoing papers, and upon oral argument from counsel, Defendant's motion is granted.

This is Defendant's motion for summary judgment dismissing the claim in this matter. The underlying claim, which was filed on March 27, 2000, involves real property owned by Claimant, located in the Town of Lancaster, New York. The claim purports to assert a cause of action for a de facto appropriation and alleges that Claimant's predecessor had given the State a temporary easement over the subject property that expired on March 28, 1994. The basis of the claim is that after March 28, 1994, the State wrongfully remained in possession of this easement area by leaving two retention ponds on the property. Claimant alleges that the ponds, which occupy approximately .87 acres or 4% of the property, are centrally located and prevent ingress and egress to the property. The claim further asserts that the action is governed by the six year statute of limitations contained in CPLR § 213(1), and that it is therefore timely, having been filed one day before the six years expired.

Defendant asserts in its motion papers that the claim is time-barred and correctly points out that the three year statute of limitations contained in CPLR § 214(4) governs an action for de facto appropriation and that the time within which a viable claim could have been presented expired on March 28, 1997.

In response to Defendant's motion, Claimant apparently concedes that the statute of limitations for de facto appropriation is governed by CPLR § 214(4) and, therefore, that it has expired. Claimant argues, however, that because the retention ponds are still on the property, it has, and its claim adequately sets forth, a cause of action for continuing trespass. For this reason, Claimant asks the Court to ignore the fact that it titled its claim "Claim for De Facto Appropriation" and find that, because the distinction between a de facto taking and a trespass is one of degree, Claimant has set forth a timely and viable cause of action for continuing trespass.

Both parties have appropriately cited the cases of O'Brien v City of Syracuse (54 NY2d 353, 357), Vinciguerra v State of New York (262 AD2d 743), and Stewart v State of New York (248 AD2d 761) as giving guidance on this issue by setting forth the distinction between a taking and a continuing trespass. Those cases have clearly indicated that, although these causes of action are similar in nature, they are not the same. As stated in Stewart v State of New York (248 AD2d 761, supra, at 762):
What distinguishes a de facto taking from a trespass is the degree of the interference with the owner's property rights. "[W]here the interference with property rights is only temporary, casual, or intermittent, without any permanent use or appropriation or destruction of an existing right, there is a mere trespass and not a taking" (51 NY Jur 2d, Eminent Domain, § 88, at 135). On the other hand, where the State's entry upon the land permanently interferes with the owner's "physical use, possession and enjoyment of [the land]", the State's action constitutes a de facto taking (Hylan Flying Serv. v State of New York, 54 AD2d 278, 280). (citations omitted)
In Carr v Town of Fleming (122 AD2d 540, 541), the Appellate Division, Fourth Department, addressed a situation where both a continuing trespass and an appropriation had been alleged. In that case, the Defendant installed a sewer line upon a vacant piece of land owned by the plaintiff. The plaintiff, who had been in Florida, did not notice the sewer line for many years. The Court stated:
A de facto taking is similar to a trespass in that both require a physical entry. However, a trespass is temporary in nature, and a de facto taking is a permanent ouster of the owner or permanent interference with his physical use, possession and enjoyment of the property by one having condemnation powers (citation omitted). An entry cannot be both a trespass and a taking because, in the latter instance, the condemnor acquires ownership.
Additionally, in Hylan Flying Service, Inc. v State of New York (54 AD2d 278) the Appellate Division, Fourth Department, was called upon to determine whether a trespass or an appropriation of the Claimant's property had occurred after the State constructed a drainage ditch that was 7 feet deep, 50 feet wide and 2000 feet long, taking up 2.46 acres, less than 1% of a 316.67 acre parcel of Claimant's land. The Court determined that the interference was of such a degree that an appropriation and not a trespass had taken place.

Here, Claimant finds itself in the very uncomfortable posture of having to argue, due to statute of limitations constraints, that the State's actions constitute a continuing trespass. At the same time, Claimant has alleged that the two ponds in question take up .87 acres, or just over 4% of the 20.83 acres that constitute the subject property. Claimant also alleges that the ponds are permanent and "are located centrally on the affected realty such that claimant must now take expensive and burdensome steps to effect ingress and egress appropriate for commercial development of the property." (Earne affidavit, paragraph 6).

It is, perhaps, for this reason that Claimant does not attempt to apply the distinctions between these two causes of action, as set forth above, to the allegations of its claim. Rather, Claimant appears to argue that Defendant's improper use of the land after the expiration of a legitimate easement is what distinguishes the two causes of action. Claimant asserts, without the support of precedent, that the claim is actually one for continuing trespass because Defendant's "position in this action is contrary to the use of the temporary easement process, which would not result according to existing case law, in the effecting of a de facto appropriation but a continuing trespass" (Earne affidavit, paragraph 11).

I find that the nature of Defendant's interference with Claimant's property was a de facto appropriation, and not a trespass. I also find that the cause of action alleged in the claim is one for de facto appropriation and not for continuing trespass. Defendant's easement relating to the subject property expired on March 28, 1994. As the claim was filed on March 27, 2000, and the appropriate statute of limitations for de facto appropriations is three years as set forth in CPLR § 214(4), I find that the claim is untimely and must be dismissed.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for summary judgment dismissing the claim is granted. The Clerk is directed to close the file.

December 5, 2003
Rochester, New York

Judge of the Court of Claims