New York State Court of Claims

New York State Court of Claims

DONATO v. THE STATE OF NEW YORK, #2007-015-196, Claim No. 113145, Motion Nos. M-72908, CM-73084


Synopsis


Appropriation claim was dismissed as untimely and cross-motion for late claim relief was denied with leave to resubmit upon the application of the administrator of the estate. Although action did not name the administrator of the property owner's estate as a party, this was not a fatal defect requiring dismissal and could be corrected as a mere irregularity because claim was filed after the appointment of the estate representative. The claim was untimely, however, as it was filed and served more than three years after service of the notice of acquisition. Notwithstanding requirement for personal service of the notice of acquisition in Court of Claims Act § 10 (1) allowance for service by certified mail contained in EDPL § 502 (14) controls. Measured from date on which the notice of acquisition was mailed, the claim was untimely filed and served. Late claim relief was improperly sought by one acting pursuant to a power of attorney signed by the administrator. Power of attorney was ineffective for this purpose.

Case Information

UID:
2007-015-196
Claimant(s):
ESTATE OF JOSEPH DONATO, SR.
Claimant short name:
DONATO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113145
Motion number(s):
M-72908
Cross-motion number(s):
CM-73084
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
The Law Office of Livingston T. Coulter, EsquireBy: Livingston T. Coulter, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Audrey V. Bullen, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 5, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for dismissal of the claim as untimely filed and served pursuant to CPLR 3211 (a) (1) and (5), EDPL § 503 (A) and Court of Claims Act § 10 (1). Claimant cross-moves for leave to late file a claim pursuant to Court of Claims Act § 10 (6). For the reasons which follow, the defendant's motion is granted and the claimant's cross-motion is denied with leave to resubmit upon the application of the duly appointed estate representative.

A claim alleging the temporary and permanent appropriation of certain real property was filed on behalf of the "Estate of Joseph Donato, Sr." on December 27, 2006. The subject property was owned by Joseph Donato, Sr. who died intestate in 1972. In that same year the decedent's son, Louis Donato, was appointed the administrator of his father's estate. On November 1, 2002 acquisition maps were filed in the office of the Albany County Clerk and on November 14, 2002 notices of appropriation together with the maps were served upon Louis Donato individually and as administrator of the estate of Joseph Donato by certified mail, return receipt requested (see defendant's Exhibits G and I). The certified mail receipts were signed by Louis Donato on November 15, 2002 (see defendant's Exhibits H and J).

In support of its motion for dismissal, the defendant argues that pursuant to EDPL § 503 (A) a claim for damages arising out of the acquisition of real property must be filed within three years following service of the notice of acquisition or date of vesting, whichever is later. According to defendant the instant claim, filed on December 27, 2006, is therefore time-barred. The defendant also argues that late claim relief is barred by the time limitations set forth in the claimant's agreement to accept an advance payment, which incorporated the statutory time limit set forth in the Eminent Domain Procedure Law (see Defendant's Exhibit N, Agreement For Advance Payment, ¶ 9).

Philip Donato is the son of Louis Donato and purports to act on his behalf pursuant to a power of attorney executed on January 9, 2003. Philip Donato does not contest the defendant's assertion that the claim was untimely filed and served and cross-moves for late claim relief pursuant to Court of Claims Act § 10 (6). In support of this application Philip Donato avers that his father Louis Donato has suffered from Alzheimer's Disease since approximately 2002 and has been unable to function in his representative capacity since that time. Philip Donato states that because of his illness, Louis Donato lost or disposed of much of the paper work received from the State regarding this claim. Philip Donato further states that although an agreement for advance payment was executed by Philip Donato as attorney-in-fact for Louis Donato in 2003, this agreement was rejected by the State because it was not executed by Louis Donato as administrator of the estate of Joseph Donato (see claimant's Exhibits 2 and 3).

In opposition to the cross-motion for late claim relief, the defendant argues that this action brought on behalf of "Estate of Joseph Donato, Sr." is improper as an estate is not a legal entity and cannot bring suit or be sued in its own name. In addition, the defendant objects to Philip Donato acting on behalf of Louis Donato in this matter as Louis Donato is the appointed estate representative. With respect to the validity of the agreement for advance payment, however, the defendant conceded that "it is arguable that the rejection prevents the claim from being deemed fully settled pursuant to EDPL 503 (A), and paragraph '9' of the agreement".

The Proper Party

The law is well settled that " '[a]n estate is not a legal entity and any action for or against the estate must be by or against the executor or administrator in his or her representative capacity' " (Grosso v Estate of Gershenson, 33 AD3d 587, 587 [2006], quoting 100 W. 72nd St. Assoc. v Murphy, 144 Misc 2d 1036, 1040 [1989]; EPTL § 11-3.1). The Court of Appeals has held that an action which was commenced prior to the appointment of an estate representative did not meet the requirements of Court of Claims Act §§ 10 (2) and (3) requiring dismissal (Lichtenstein v State of New York, 93 NY2d 911 [1999]). On the other hand, where an action is commenced after the appointment of an estate representative, the failure to name the estate representative as a party is not a fatal defect requiring dismissal and may be corrected as a mere irregularity (see Rosenberg v Caban, 16 NY2d 905 [1965]; Kramer v Twin County Grocers, 151 AD2d 722 [1989]; Carp v Marcus, 114 AD2d 695 [1985]; Heimer v Johnson, Drake & Piper, 26 AD2d 547 [1966]).

This claim was filed and served after the date Louis Donato was appointed administrator of the estate of Joseph Donato, Sr. Thus, the fact that the caption of this action reflects only the estate of Joseph Donato, Sr. without the designation of Louis Donato as the administrator is not a fatal jurisdictional defect requiring dismissal.

The Timeliness Of The Claim

Court of Claims Act § 10 (1) provides, as pertinent here, that a claim for the appropriation of lands by the state "shall be filed within three years after the accrual of such claim, or where title is vested by the filing of a description and map in the office of the county clerk. . ., then within three years after personal service of a copy of such description and map and notice of filing thereof . . .". Consistent with this provision, EDPL § 503 (A) provides that a condemnee must file a claim for damages arising from the acquisition "within three years after service of the notice of acquisition or date of vesting, whichever is later. . ." .

Title to the subject property vested upon the filing of the acquisition maps on November 1, 2002 (see EDPL § 402 [A] [3]) and service of the notice of acquisition by certified mail, return receipt requested occurred on November 14, 2002. Although Court of Claims Act § 10 (1) requires personal service of the notice of acquisition, EDPL § 502 authorizes service by certified mail, return receipt requested. To the extent the personal service requirement in the Court of Claims Act § 10 (1) conflicts with the service provisions of EDPL § 502 (A), the EDPL provisions have been held controlling (see Biz-Biz Corp. v State of New York, 29 AD3d 720 [2006]; Boyajian v State of New York, 293 AD2d 560 [2002]; EDPL § 705). Thus, service of the notice of acquisition by certified mail, return receipt requested, was proper. Measured from the date the notice of acquisition and maps were mailed, the claim was required to be filed by November 14, 2005[1]. The claim filed on December 27, 2006 was untimely and is therefore dismissed.

The Cross-Motion For Late Claim Relief

The application for late claim relief is supported by the affidavit of Philip Donato who purports to act pursuant to a short form general power of attorney signed by Louis Donato, administrator of the estate of Joseph Donato, Sr. and a proposed claim which deviates from the previously filed claim and is verified by Philip Donato as the attorney-in-fact for Louis Donato. The power of attorney signed by Louis Donato on January 9, 2003, subsequent to the alleged onset of Alzheimer's Disease, authorizes Philip Donato to act as attorney-in-fact in his place and stead "in any way which I myself could do, if I were personally present, with respect to [all matters] to the extent that I am permitted by law to act through an agent..." (see defendant's Exhibit R). The authority to act relative to "estate transactions" was specifically authorized in the document.

It is the general rule that "[t]o the extent permitted by law and the terms of the power of attorney, an attorney-in-fact may act for [his or her] principal in all matters that do not require the principal to act for himself " (Matter of Rice v Novello, 25 AD3d 992, 993 [2006]). Two questions therefore arise: whether the terms of the power of attorney executed by Louis Donato included the authority to act in his stead as administrator of the estate of Joseph Donato, Sr. and whether such a delegation is permitted by law.

General Obligations Law § 5-1502G defines "estate transactions" to mean that the principal authorizes the agent, inter alia:
1. To the extent that an agent is permitted by law thus to act for a principal, to apply for and to procure, in the name of the principal, letters of administration, . . . or any other type of authority, either judicial or administrative, to act as a fiduciary of any sort;


2. To the extent that an agent is permitted by law thus to act for a principal, to represent and to act for the principal in all ways and in all matters affecting any estate of a decedent, . . . with respect to which the principal is a fiduciary. . .

Despite the seemingly broad language of the statute, it has been held that the phrase "estate transactions" in the General Obligations Law is limited to transactions by an estate or trust beneficiary, and does not apply to an attempted assignment by a fiduciary of total responsibility for the administration of an estate (see Matter of Jones, 1 Misc 3d 688 [Sur Ct 2003]). Thus at least one court has concluded that a power of attorney which expressly delegates the authority to act in "estate transactions" does not include the power to act as a fiduciary relative to issues of estate administration. The Court in Matter of Jones, supra, additionally concluded that a fiduciary cannot delegate his or her responsibility for the entire administration of the estate because " '[t]he duty of a fiduciary is personal and cannot be divested by delegation' " (id. at 689, quoting 41 NY Jur 2d, Decedents' Estates § 1479 at 84). Thus, the Court finds that the prosecution of this action must be by the duly appointed estate representative and not one purporting to act on his or her behalf pursuant to a power of attorney (cf. Matter of Murray, 14 Misc 3d 591 [Sur Ct 2006]).

In addition, inquiry by this Court revealed that the filing and recording requirements of EPTL § 13-2.3 and the Uniform Rules for Surrogate's Court § 207.48 [22 NYCRR § 207.48] have not been met. In this regard, EPTL § 13-2.3 requires that a power of attorney be acknowledged or proved in the same manner prescribed for the recording of a conveyance of real property and be recorded in the office of the surrogate granting letters. Uniform Rules for Surrogate's Court § 207.48 states that a power of attorney affecting any interest in an estate shall not be filed or recorded pursuant to EPTL §13-2.3 unless it is satisfactory to the court as to form and is accompanied by an affidavit setting forth the circumstances under which the power of attorney was procured, among other requirements. Having not met these requirements, the power of attorney under which Philip Donato purports to act is ineffective.

This Court's conclusion that Louis Donato may not delegate to Philip Donato his entire responsibility to administer the estate of Joseph Donato, Sr. pursuant to the power of attorney precludes the grant of late claim relief. First, because the proposed claim is verified by Philip Donato pursuant to the power of attorney which is ineffective for this purpose and, second, because this action must be brought by the estate representative who, it has been alleged, is incompetent. As a result, the cross-motion for late claim relief is denied without prejudice to resubmit upon a proper application. The Court notes in this regard that if Louis Donato is unfit to serve as a representative of the decedent's estate, movant is not without a remedy (see SCPA § 711; Matter of Palma, 40 AD3d 1157 [2007]).

Accordingly, the defendant's motion to dismiss is granted, and the cross-motion pursuant to Court of Claims Act § 10 (6) is denied without prejudice to resubmit upon a proper application.


June 5, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated February 2, 2007;
  2. Affirmation of Audrey V. Bullen dated February 2, 2007 with exhibits;
  3. Affidavit of John M. Davey sworn to January 31, 2007 with exhibits;
  4. Notice of cross-motion dated March 21, 2007;
  5. Affidavit of Philip M. Donato sworn to March 21, 2007 with exhibits;
  6. Affirmation of Livingston T. Coulter dated March 21, 2007;
  7. Reply affirmation of Audrey V. Bullen dated April 2, 2007 with exhibit.

[1]. Service of the notice of acquisition was complete upon mailing (see Corn Hill Landing, L.L.C. v State of New York, 12 Misc 3d 874 [2006], appeal dismissed 39 AD3d 1286 [2007]).