New York State Court of Claims

New York State Court of Claims

FRIEDENBURG v. THE STATE OF NEW YORK, #2007-033-231, Claim No. 112534, Motion Nos. M-72504, CM-72552


Synopsis



Case Information

UID:
2007-033-231
Claimant(s):
STANLEY FRIEDENBURG, as Executor of the Estate of GWENDOLYN LONDINO and MARGARET CARSON a/k/a MARGARET LONDINO
Claimant short name:
FRIEDENBURG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112534
Motion number(s):
M-72504
Cross-motion number(s):
CM-72552
Judge:
James J. Lack
Claimant’s attorney:
Esseks, Hefter & Angel, LLPBy: Stephen R. Angel, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Rose Farrell Lowe, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 13, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Stanley Friedenburg, as Executor of the Estate of Gwendolyn Londino and Margaret Carson a/k/a Margaret Londino (hereinafter “claimant”) for the appropriation of land located on the north side of Meadow Lane a/k/a Dune Road a/k/a Beach Road in the Village of Southampton, County of Suffolk.


The property, approximately 2.5 acres, was purchased by Gwendolyn Londino in 1962. At the time of the purchase, the property was not subject to any wetlands restrictions. The property was and is vacant. In 1987, claimant attempted to sell the property. The sale was subject to a tidal wetlands permit being issued. On April 14, 1995, the Commissioner of the Department of Environmental Conservation (hereinafter “DEC”) denied the issuance of a tidal wetlands permit. Claimant then brought an Article 78 proceeding against the DEC to have the taking without compensation to be declared a taking or to have a permit issued. In 2001, the Supreme Court entered a judgment that the restrictions placed on claimant’s property were a taking without compensation. Pursuant to ECL §25-0404, the court directed the DEC to commence eminent domain proceedings or issue a permit within 30 days. Eminent domain proceedings were started by DEC on May 24, 2005, when it filed the taking map in the office of the Suffolk County Clerk.

The decision of the Supreme Court was appealed by the DEC. The Second Department affirmed the Supreme Court (3 AD3d 86). The Appellate Division directed the parties to the Court of Claims for a determination of damages.

Claimant moves this Court for a determination that the valuation date for the property in this proceeding is May 24, 2005, when the maps were filed[1]. Defendant opposes the motion and cross-moves to have the valuation date of the property determined as April 14, 1995.

Claimant argues that the Supreme Court and the Appellate Division declared that DEC’s action was the “equivalent” of a taking without compensation, but was not declared to be a taking. Claimant avers that the taking did not occur until the maps were filed and title was vested in defendant. Claimant argues that he could have made another application at any time because title was still held by claimant.

There is no controversy before this Court to be decided. The issue before this Court has been previously decided by the Supreme Court and affirmed by the Appellate Division. The Appellate Division gave an in-depth analysis as to the de facto taking of claimant’s property. The valuation date was previously set by both the Supreme Court and affirmed by the Appellate Division as April 14, 1995. The only issue before this Court is damages.

Accordingly, claimant’s motion for determination of the valuation date as May 24, 2005 is denied, and defendant’s cross-motion for a determination of the valuation date as April 14, 1995 is granted.


March 13, 2007
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims



[1].The following papers have been read and considered on claimant’s motion and defendant’s cross-motion: Notice of Motion dated November 7, 2006 and filed November 8, 2006; Affidavit of Stephen R. Angel, Esq. with annexed Exhibits A-J sworn to November 7, 2006 and filed November 8, 2006; Affirmation in Opposition and Cross-Motion of Rose Farrell Lowe, Esq. with annexed Exhibits 1-4 dated November 15, 2006 and filed November 16, 2006; Reply Affidavit of Stephen R. Angel, Esq. sworn to December 1, 2006 and filed December 4, 2006.