New York State Court of Claims

New York State Court of Claims

BIZ-BIZ v. THE STATE OF NEW YORK, #2004-033-091, Claim No. 107636, Motion No. M-68928


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:
Flower, Medalie & Markowitz, Esqs.By: Alan Wasser, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Audrey V. Bullen, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for damages resulting from the appropriation of property located at 725 State Route 25A, in the hamlet of Miller Place, Town of Brookhaven, County of Suffolk, New York. The date of vesting is on or about 1997.[1] The claim was filed on April 21, 2003.

Defendant moves to dismiss the claim as untimely and beyond the statute of limitations[2]. According to defendant, the State filed the acquisition maps for the above-mentioned property on September 18, 1995. At the time of the acquisition, the property was owned by Miller Place Associates. At the time of the filing, the principals of Miller Place Associates could not be located for personal service of the notice of appropriation. On May 15, 1996, the State attempted personal service of the notice of appropriation and maps at the residence of Edna Amirian, President of Miller Place Associates. The address of Mrs. Amirian is also the business address for Miller Place Associates. The person that answered the door refused service. Using certified mail, return receipt requested, the State sent a notice of appropriation and maps to Edna Amirian at her residence and to Miller Place Associates at the same address. The letter addressed to Edna Amirian was signed for and the receipt returned. Pursuant to Eminent Domain Procedure Law §502(A), the State filed and recorded the notice of appropriation and filed copies of the appropriation maps, in the office of the Suffolk County Clerk on May 7, 1997.

As early as 1994, defendant alleges communication with Miller Place Associates concerning the appropriation of the property. Included as Exhibit F in support of defendant's motion, is a packet of letters from the State to Miller Place Associates. The Exhibit contains numerous letters to Miller Place Associates and Saaed Amirian (Edna's husband and vice-president of Miller Place Associates). The package also has handwritten notes from defendant's employees which make reference to conversations with Mr. Amirian. Included in the Exhibit, is an affidavit of title which is signed by Edna Amirian before a notary on July 17, 1996. Mrs. Amirian also signed an assignment of claim and release on the same date and others on November 13, 1996 and December 9, 1996. Exhibit G is an agreement for an advance payment which was executed by Edna Amirian on June 19, 1996. On June 6, 2002, Miller Place Associates sold the property to claimant. Claimant makes this claim for damages based on an assignment from Miller Place Associates to claimant dated June 6, 2001.[3]

In opposition to defendant's motion, claimant argues that service of the notice of appropriation was not properly served upon the county clerk's office. Claimant contends that the single attempt at personal service and the subsequent mailing of the documents were not a reasonable and proper effort. Therefore, claimant argues, without proper service, the claim is timely.

Eminent Domain Procedure Law §§502(A)(2) & (3) state:
(2) if it is unable to serve a copy of such map and notice of acquisition, or cause the same to be served upon a condemnee personally within the state, after making an effort so to do, service in lieu thereof may be made by the condemnor by causing such map and notice of acquisition to be filed in the office of the county clerk or register aforesaid, and by causing such notice to be recorded in said office; and

(3) simultaneously therewith, cause a certificate to be filed and recorded in said office, which certificate shall state that the condemnor has been unable to serve a copy of such map and notice of acquisition, or cause the same to be served upon such condemnee personally within the state after a reasonable and proper effort to do so. The certificate shall direct that service be effected by filing and recording as herein provided. It shall be the duty of such county clerk or register, upon filing of the notice of acquisition and certificate, to record the same in the books in his office used for recording deeds, and to index the same in the deed index books in his office, listing the person named in such certificate as a grantor. The record of such notice and certificate shall be presumptive evidence of due service of such acquisition map and notice of acquisition on the person named in said certificate.

In Ebbets v State of New York, 64 AD2d 794, aff'd 47 NY2d 973, the State appropriated approximately 73 acres in Suffolk County, New York, on September 25, 1970, from Wodembarc Corp. At the time of the appropriation, Justine Lambert was the president, treasurer and sole shareholder of Wodembarc Corp. On December 9, 1970, the State attempted to serve the owner of the property at her home and on December 10, 1970 at her place of business. The attempts were unsuccessful. No further efforts were made at personal service and the State effected service through service on the Suffolk County Clerk on February 11, 1971. On January 20, 1971, the State and Lambert, as president of Wodembarc Corp., entered into an agreement for advance payment. After Lambert's death in June 1975, the corporation assigned the rights to the claim to the heirs of the estate. In May 1976, the heirs filed a claim. The claim was dismissed as untimely.

The Court held that the substituted service was valid because the prior attempts had proven unsuccessful. Moreover, the Court found that it could not be argued that Lambert did not know about the appropriation. Lambert had negotiated and signed the agreement for advance payment with the State. Under the circumstances, the Court held the substituted service to be adequate.

This Court is now faced with the identical situation as in Ebbets. The State appropriated property. Thereafter, the State attempted to serve the prior owner of the property with the notice of appropriation and maps. Once by personal service and once by certified mail, return receipt requested. Eventually, the State effectuated service through the Suffolk County Clerk's Office. During this entire time period, the prior owner of the property was aware of the appropriation and negotiating with the State. Prior to the service of the notice of appropriation and maps through the county clerk's office, the prior owner and the State entered into an advance payment agreement. The prior owner never filed a claim in regard to the property which is the subject of the current claim.

The Court finds that the substituted service was valid. Claimant concedes that if the substituted service were to be found valid then the claim is filed beyond the statute of limitations.

Based upon the foregoing, defendant's motion to dismiss is granted. The Clerk of the Court is directed to close the file.

December 3, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]This is the date cited by claimant in the claim for damages. Defendant fixes the date in its moving papers.
[2]The following papers have been read and considered on defendant's motion to dismiss: Notice of Motion dated August 11, 2004 and filed August 11, 2004; Affirmation in Support of Audrey V. Bullen, Esq. with annexed Exhibits A-H dated August 11, 2004 and filed August 11, 2004; Affirmation in Opposition of Alan Wasser, Esq. with annexed Exhibit A dated September 15, 2004 and filed September 17, 2004; Reply Affirmation of Audrey V. Bullen, Esq. dated September 20, 2004 and filed September 20, 2004.
[3]Both parties offer hearsay explanations as to the difference in the dates. The Court rejects the explanations as hearsay and will rely on the documents before the Court and the dates therein.