| Matter of Incorporated Vil. of Westbury v IACO Realty,Inc. |
| 2015 NY Slip Op 06820 [131 AD3d 1060] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Incorporated Village of Westbury,Respondent, v IACO Realty, Inc., et al., Respondents. First Union NationalBank, Custodian for MDSASS, Nonparty Appellant. |
Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Cara M.Goldstein and Kathleen C. Maher of counsel), for nonparty-appellant.
Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Jon A. Ward,Michael H. Sahn, and Joseph R. Bjarnson of counsel), for petitioner-respondent.
In a condemnation proceeding pursuant to EDPL 402, nonparty First Union NationalBank, Custodian for MDSASS, appeals from an order of the Supreme Court, NassauCounty (Adams, J.), entered October 10, 2013, which denied its motion to enforce itsequitable lien against the Incorporated Village of Westbury and to hold the Villagejointly and severally liable for damages for the wrongful payment of condemnationproceeds.
Ordered that the order is affirmed, with costs.
In April 2007, the Incorporated Village of Westbury commenced this proceeding tocondemn property located in Westbury (hereinafter the subject property). The Villageserved notice of the condemnation proceeding pursuant to EDPL 402 (B) (2) uponinterested parties, including Wachovia Bank, on behalf of the appellant, nonparty FirstUnion National Bank, Custodian for MDSASS. MDSASS was a holder of certain taxliens encumbering the subject property. By order dated June 5, 2007 (hereinafter the vesting order), the Supreme Court granted the Village's petition and ordered that title tothe subject property vest with the Village. The vesting order also provided that any purported owners, lienors, and mortgagees wererequired to file a written claim before November 30, 2007. The Village also servednotice of the vesting order pursuant to EDPL 502 (B) upon all condemnees, including the appellant.On February 13, 2008, the Nassau County Treasurer's office paid the condemnationaward to the condemnees.
On or about October 8, 2010, the appellant allegedly learned for the first time that thesubject property had been condemned, and on March 31, 2011, moved to intervene andto vacate the vesting order. The appellant contended, inter alia, that the Village failed to notify it of thecondemnation proceedings and, as a result, it did not make a claim for the condemnationproceeds and suffered financial loss. In an order dated August 10, 2012, the SupremeCourt granted so much of the appellant's motion which was to intervene, stating that itstax liens had been extinguished and replaced by an equitable lien on the proceeds of thecondemnation award, but denied so much of its [*2]motion which was to vacate the vesting order. In January 2013, the appellant moved to enforce its equitable lien and tohold the Village jointly and severally liable for the wrongful payment of thecondemnation proceeds. In the order appealed from, the Supreme Court denied itsmotion.
Contrary to the appellant's contentions, the claims in its motion that are premisedupon the wrongful payment of the condemnation proceeds sound in tort, and the noticeof claim requirements of General Municipal Law § 50-e are applicable(see North Side Sav. Bank v Town of Hempstead, 236 AD2d 456 [1997];Curtis Case, Inc. v City of Port Jervis, 150 AD2d 421, 421 [1989]; Silberstein vCounty of Westchester, 92 AD2d 867, 867 [1983], affd 62 NY2d 675, 675[1984]). These claims accrued on the date the condemnation proceeds were paid,February 13, 2008 (see General Municipal Law §§ 50-e, 50-i;Klein v City of Yonkers, 53 NY2d 1011, 1013 [1981]). As the appellant hasnever filed a notice of claim pursuant to General Municipal Law § 50-e, itsclaims for relief in its motion made in January 2013, almost five years after thecondemnation award was paid out and distributed, are time-barred (see GeneralMunicipal Law § 50-i). The appellant also did not demonstrate that thedoctrine of equitable estoppel applies so as to preclude the statute of limitations defense,as it did not allege any separate and subsequent act of wrongdoing that prevented it fromtimely bringing suit (seeZumpano v Quinn, 6 NY3d 666, 673-675 [2006]).
The appellant's remaining contentions are without merit. Dillon, J.P., Chambers, Halland Duffy, JJ., concur.