| Putney v People |
| 2012 NY Slip Op 02544 [94 AD3d 1193] |
| April 5, 2012 |
| Appellate Division, Third Department |
| Alice Putney et al., Appellants, v The People of The State of NewYork, Acting by and Through the Power Authority of the State of New York, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen W. Demuth of counsel), forrespondents.
Rose, J. Appeals (1) from an order of the Supreme Court (Demarest, J.), entered August 19,2010 in St. Lawrence County, which, among other things, granted defendants' motion to dismissthe complaint, and (2) from an order of said court, entered February 24, 2011 in St. LawrenceCounty, which denied plaintiffs' motion for reargument.
Plaintiffs are successors in interest to the former owners of five parcels of real propertyappropriated by the Power Authority of the State of New York (hereinafter NYPA) in 1955 and1964 in connection with a project to develop the international rapids section of the St. LawrenceRiver by constructing a number of dams, the St. Lawrence Seaway and the St. Lawrence PowerPlant (see Public Authorities Law §§ 1001, 1002, 1005). Four of the fiveparcels directly adjoin the river, and they all were appropriated by NYPA in fee for flooding andflowage purposes and to ensure that any erosion caused would occur on land owned by defendantState of New York. After more than four decades of experience operating the project, NYPAdetermined that it no longer needed a fee interest in the parcels and would convey title to themwhile retaining rights of flooding and flowage.[*2]
Accordingly, in 2006 and 2007, NYPA offered plaintiffsthe opportunity to purchase the parcels for an amount found by its appraiser to be fair marketvalue (see Public Authorities Law § 1007 [10]). Unhappy with the appraised value,plaintiffs commenced this declaratory judgment action in June 2009, alleging, among otherthings, that the original takings in 1955 and 1964 were excessive and, therefore, illegal andunconstitutional. Defendants filed a preanswer motion to dismiss based on the statute oflimitations and laches, and plaintiffs moved to amend the complaint to add causes of action forfraud and continuing trespass. Supreme Court dismissed the complaint as time-barred and deniedplaintiffs' motion to amend as well as their subsequent motion to reargue. Plaintiffs appeal fromboth orders.
Contending that the original appropriation of a fee interest in the parcels was excessive andillegal from the outset because NYPA now agrees that it needs only a flowage easement,plaintiffs argue that the statute of limitations did not begin to run until they first discovered theillegality when NYPA offered to convey the parcels to them. We are not persuaded. Generally,the limitations period begins to run on the date when the injury occurs and the plaintiff firstbecomes entitled to maintain the particular action in question (see Gaidon v Guardian LifeIns. Co. of Am., 96 NY2d 201, 210 [2001]; Britt v Legal Aid Socy., 95 NY2d 443,446 [2000]). Here, the alleged injury occurred in 1955 and 1964 when title to the appropriatedproperty vested upon the filing of the acquisition maps in the County Clerk's Office (seeHighway Law former § 30 [6]; La Porte v State of New York, 6 NY2d 1, 5[1959]), and plaintiffs offer no authority upon which to conclude that the statute of limitations fora challenge to the extent of the appropriation commenced at any time other than when titlevested.[FN1]Nor have plaintiffs advanced any persuasive reason why they or their predecessors in interestcould not have challenged the extent of the appropriations in a timely manner.[FN2]
Supreme Court also properly denied plaintiffs' motion to amend the complaint because theproposed causes of action for fraud and continuing trespass rely upon plaintiffs' basic claim thatthe appropriations were excessive, and yet the basic claim has no merit. In reaching thisconclusion, we note that NYPA was authorized to acquire real property "reasonably necessary forthe construction or operation" of the project (Public Authorities Law § 1007 [10]), and wewill not substitute our judgment for that of the duly authorized agency unless the agency'sdetermination of necessity is clearly unreasonable (see Hallock v State of New York, 32NY2d 599, 605 [1973]; Cuglar v Power Auth. of State of N. Y., 4 Misc 2d 879, 898[1957], affd 4 AD2d 801 [1957], affd 3 NY2d 1006 [1957]). Significantly, weheld in Cuglar that "land directly adjoining the [St. Lawrence River] must be owned andcontrolled by [NYPA]," effectively rejecting the claim that NYPA's appropriation of similarlysituated properties for the very same project was unreasonable (Cuglar v Power Auth. of Stateof N. Y., 4 AD2d at 802). Furthermore, plaintiffs cite no basis for their conclusory assertionthat NYPA's offers to convey the parcels to them in 2006 and 2007 equate to an admission thatthe original appropriations were [*3]in bad faith or unreasonablein 1955 and 1964. Given the futility of adding proposed causes of action that are plainly lackingin merit, we find no abuse of the court's discretion here (see Davis v Wyeth Pharms., Inc., 86 AD3d 907, 908 [2011]; McColgan v Brewer, 75 AD3d876, 878 [2010]; Alaimo v Town ofFort Ann, 63 AD3d 1481, 1484 [2009]).
We also agree with Supreme Court that dismissal pursuant to the doctrine of laches isappropriate, given the obvious prejudice to NYPA based upon the lapse of time between theappropriations and the commencement of the action (see Matter of Marshall v City of Albany, 45 AD3d 1064, 1066[2007]; Sparkling Waters LakefrontAssn., Inc. v Shaw, 42 AD3d 801, 802-803 [2007]; Delamater v Rybaltowski,161 AD2d 1001, 1002 [1990]). Further, plaintiffs' challenge to the fair market value asdetermined by NYPA in its offers of conveyance is essentially a claim that the determination is"arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]; see Bitondo v State ofNew York, 182 AD2d 948, 950 [1992]). Thus, as more than four months had elapsedbetween the offers of conveyance and the commencement of the action, the challenge to thevalue assigned to the properties is also untimely (see CPLR 217 [1]). Finally, as noappeal lies from the denial of a motion to reargue, plaintiffs' appeal from the order denyingreargument must be dismissed (see Bellv New York State Higher Educ. Servs. Corp., 90 AD3d 1261, 1263 [2011]; Cheney v Cheney, 86 AD3d 833,838 [2011]).
Peters, J.P., Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order entered August19, 2010 is affirmed, without costs. Ordered that the appeal from the order entered February 24,2011 is dismissed, without costs.
Footnote 1: Under the current statutoryscheme, a claim that an appropriation is excessive must be brought pursuant to EDPL 207 (A)(see 3 Warren's Weed, New York Real Property § 28.46 [3] [2009]).
Footnote 2: Indeed, the record reveals thatthe valuation—as opposed to the extent—of the 1964 appropriation was challengedand resolved in the Court of Claims with a decision issued in 1969.