| Hargett v Town of Ticonderoga |
| 2008 NY Slip Op 09147 [56 AD3d 1016] |
| November 20, 2008 |
| Appellate Division, Third Department |
| Georgia Hargett, Appellant, v Town of Ticonderoga et al.,Respondents. |
—[*1] FitzGerald, Morris, Baker & Firth, Glens Falls (John D. Aspland Jr. of counsel), forrespondents.
Kane, J. Appeal from an order of the Supreme Court (Dawson, J.), entered February 22, 2008in Essex County, which, among other things, granted defendants' cross motion for summaryjudgment dismissing the complaint.
In a prior proceeding pursuant to EDPL 207 (A), this Court held that defendant PhillipHeustis, highway superintendent for defendant Town of Ticonderoga, exceeded his authoritywhen he condemned plaintiff's property, purportedly as an exercise of eminent domain (Matter of Hargett v Town ofTiconderoga, 35 AD3d 1122 [2006], lv denied 8 NY3d 810 [2007]). Plaintiffcommenced this action, pursuant to EDPL 702 (B), seeking reimbursement for legal costs andexpenses incurred during, and leading up to, the prior proceeding. Supreme Court deniedplaintiff's motion for summary judgment and granted defendants' cross motion for summaryjudgment dismissing the complaint, prompting plaintiff's appeal.
Initially, Supreme Court had subject matter jurisdiction over this case. Supreme Court is thestate's court of general jurisdiction and is presumed to have jurisdiction unless there is somereason to question it (see NY Const, art VI, § 7; Matter of Piotrowski v Townof Glenville, 101 AD2d 654 [1984]). The issues raised herein could not have been previouslyconsidered by this Court, as the original jurisdiction of this Court is statutorily limited(see EDPL 207 [C]; Matter of Hargett v Town of Ticonderoga, 35 AD3d at1123).[*2]
Pursuant to EDPL 702 (B), plaintiff is entitled to recoupher reasonable counsel fees related to the condemnation proceedings. To gain title to propertythrough eminent domain, a condemnor must follow a two-step process (see Matter of City of New York [GrandLafayette Props. LLC], 6 NY3d 540, 543 [2006]). First, pursuant to EDPL article 2, thecondemnor must determine to condemn the property through a hearing, findings procedure orauthorized alternative procedure (see EDPL 203, 204, 206). "Second, pursuant to EDPLarticle 4, the condemnor must seek the transfer of title to the property by commencing a judicialproceeding known as a vesting proceeding" (Matter of City of New York [Grand LafayetteProps. LLC], 6 NY3d at 543). Here, defendants held a hearing and determined to condemnplaintiff's property, satisfying the first step, but never reached the second step due to this Court'sannulment of the original determination.
While the Appellate Division may only consider four specific questions delineated by statutewhen reviewing a proposed acquisition after the first step (see EDPL 207 [C]), thequestion before the trial court in the second step is mainly limited to the value of the condemnedproperty. One of the delineated questions under the first step is whether "the proposed acquisitionis within the condemnor's statutory jurisdiction or authority" (EDPL 207 [C] [2]). As concededby defendants at oral argument, if that question is not raised before the Appellate Division by achallenge to the condemnor's actions under EDPL article 2, the 30-day statute of limitations barsthe condemnee's objections to that issue and it cannot be raised in an ensuing vesting proceeding(see EDPL 207 [A]; see also Matter of City of New Rochelle v O. Mueller, Inc.,191 AD2d 435, 436 [1993]; Matter of Broome County [Havtur], 159 AD2d 790, 791[1990], appeal dismissed 76 NY2d 771 [1990], lv denied 76 NY2d 709 [1990];Matter of Incorporated Vil. of Patchogue v Simon, 112 AD2d 374, 374-375 [1985], lvdenied 66 NY2d 605 [1985]). Thus, in providing for costs and counsel fees after "a court ofcompetent jurisdiction determines that the condemnor was not legally authorized to acquire theproperty," EDPL 702 (B) can only be authorizing an award of such costs and fees related to adecision by the Appellate Division under EDPL 207. In fact, counsel fees related to the value ofthe property—the only substantial question in the second step—are provided for in aseparate statute, EDPL 701.
Based upon our interpretation of the statutes, we disagree with the Second Department'sdecision in Matter of 49 WB, LLC vVillage of Haverstraw (44 AD3d 226, 245-246 [2007]) and its narrow reading of theEDPL. Under EDPL 702 (B), plaintiff is entitled to reimbursement for her reasonable costs andexpenses related to all portions of the acquisition procedure. We therefore grant plaintiff's motionon the issue of liability and remit to Supreme Court to determine the reasonable amount of herreimbursable costs and expenses.
Mercure, J.P., Spain, Rose and Stein, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted defendants' cross motion and asdenied plaintiff's motion in its entirety; defendants' cross motion denied, plaintiffs' motiongranted on the issue of liability, and matter remitted to the Supreme Court for further proceedingsnot inconsistent with this Court's decision; and, as so modified, affirmed. [See 18 Misc3d 1138(A), 2008 NY Slip Op 50343(U).]