One of the basic distinctions between the procedure used by the State of New York and that used by all other public bodies in instituting proceedings in eminent domain for the acquisition of private property is the manner in which those proceedings are instituted and the claim which must be filed by the condemnee.
The Eminent Domain Procedure Law (EDPL), while enacted supposedly to create a uniform procedure for determining just compensation in all eminent-domain proceedings did no such thing. It substantially reenacted two of the basic three procedures then in use throughout the State, with some changes, while only eliminating one of those three, the procedure contained in the Condemnation Law which provided for trials before three lay commissioners.
Article 5 of the EDPL contains two different procedures, denominated as (A) and (B) procedures, as set forth in §501. (A) procedures are those relating to appropriations by the State of New York and heard in the Court of Claims while (B) procedures result from condemnation proceedings heard in the Supreme Court. The fact that the former is an appropriation and the latter a condemnation makes a substantial difference in these procedures. In the former, the State, by administrative action, files a map in the appropriate office and by so doing vests title in itself with no court proceedings being instituted. In the latter, the condemnor, after service of process, institutes a court proceeding to take title and by so doing vests title in itself with no court proceedings being instituted. In the latter, the condemnor, after service of process, institutes a court proceeding to take title and by so doing brings the condemnee into Court for the purpose of fixing just compensation for the taking.
The impact of the difference in these procedures is felt in the process of filing a claim. In the (A) procedure, claims against the State in the Court of Claims, notice of the acquisition is to be personally served on the condemnee and he thereafter has three years in which to file a claim which institutes the litigation to fix his just compensation. That three-year period is a statute of limitations and failure to file within that time bars any later claim with the condemnee deemed to have accepted the amount of the condemnor’s offer of its “highest approved appraisal.”
In the (B) procedure, after the Court ordered filing of the appropriation map, which vests title and institutes the proceeding, the condemnor has thirty days to notify the condemnees of the taking and direct that “on or before a date therein specified, file a written claim, demand or notice of appearance — with the condemnor and the clerk of the court of the county in which the order has been filed.” The time given is usually from thirty to sixty days.
This procedure is a virtual reenactment of the procedure used in the Consolidated Condemnation Procedure of the Administrative Code of the City of New York and the various other statutes which followed its provisions, such as the Nassau County Administrative Code, the Suffolk County Improvement Act, the Westchester County Administrative Code, and the Village Law. As such, although the EDPL is relatively new, we have a substantial body of law interpreting its provisions, and particularly as to the nature of a claim under such procedure and the consequences of a filing after the date set forth in the notice of acquisition.
The general and usual view of the matter was set forth in some detail in Matter of City of New York (East River Drive), 159 Misc. 741, 757, 289 N.Y.S. 433, 450, affirmed 259 App. Div. 1007, 21 NYS 2d 509, motion for leave to appeal, denied 284 N.Y. 818. It was accompanied by In re Triborough Bridge Approach, 159 Misc. 617, 288 N.Y.S. 697, 719, affirmed 257 App. Div. 940, 12 NYS 2d 887, leave to appeal denied 282 N.Y. 808.
The Court there called attention to the fact that while the purpose of the provision was to present surprise and eliminate hardship on the part of the City in defending itself against unjust claims at the same time the just compensation rights of the claimant must be viewed as guaranteed to him by the Constitution.
The Court noted that the trouble with the statute is that it may work a greater hardship in some cases in its full operation than it relieves, that “. . . It surely cannot be made the instrument to violate the spirit of these constitutional provisions of just compensation in condemnation cases. It would seem that the notice of claim is in the nature of a pleading setting forth the extent of the claim thus made by the claimant. Pleadings are always subject to amendment. The discretion of the Supreme Court to correct mistakes, not jurisdictional, may not be taken away, at least until the Legislature specifically so states in the law itself. It should be observed that there appears to be no affirmative statement in this statute prohibiting the considering of claims which are not filed within the specified time for the filing thereof. Nor is there any penalty prescribed for a failure to do so. A party has the right to be heard in defense of his property rights. In the absence of these provisions it is clear that the court may, in the exercise of its discretion, allow an amendment to the notice of claim and hear the claim on its merits.”
As the years went by, the almost uniform position taken by condemnors was not only, in the absence of prejudice, could a claim be amended but a claim filed right up to the trial itself. It would be very hard to allege and prove prejudice as to real estate where the condemnees not only know what it has taken but, if it has followed the statute, has already appraised the property in order to make an offer and advance payment. It is also true as to trade-fixture claimants, and particularly where they are still in possession of the premises taken.
Late Filing Allowed
From time to time an odd challenge would be made by a condemnor, but with predictable results. Thus in In re Parking Place in the Village of Hempstead, Nassau County, 280 App. Div. 801, 113 NYS 2d 230, motion denied 280 App. Div. 894, 115 NYS 2d 658, appeal dismissed 304 N.Y. 870 a refusal by the trial court to accept a claim filed after the date provided for was set aside by the Appellate Division, obviously as an abuse of discretion. In re City of New York (Brooklyn Bridge S.W. Urban Renewal Project, NYLJ, Nov. 20, 1967, page 20, col. 8, the Court not only permitted the late filing of fixture claims years after the taking and the date to file claims but noted that such filings had been permitted many times. In the same proceeding, but in a different decision found at 54 Misc. 2d 424, 282 NYS 2d 597, 602, the Court allowed an amendment of fixture claims on the trial itself, noting the claimant was still in possession. A late filing of claim was permitted in Matter of Town of Oyster Bay of Plainview (Dayton Plainview Inc.) Index No. 9434/1972 decided Sept. 16, 1974.
The underlying premise of each of these cases is the rationale stated in In re East River Drive, supra. The statue involved is not a statute of limitations, the parties are already in Court, at worst it is a late pleading with the inherent power of the Court to permit it, and weighing the fact that we are dealing with a constitutionally guaranteed right of “just compensation” it would take a very clear showing of hardship on the part of the condemnor to bar such a claimant.
Reprinted with permission from the July 11, 1986 edition of the New York Law Journal © 2010 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.