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Filing of Claims
By M. Robert Goldstein and Michael J. Goldstein
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.
2 Procedures
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.
General View
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.
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