Buell v. Genesee State Park Commission

• Decision Date: 27 September 1960
• Citation: 25 Misc.2d 841,206 N.Y.S.2d 65
• Parties: Application of Cornelia R. BUELL, Petitioner, v. GENESEE STATE PARK COMMISSION, Respondent. Cornelia R. BUELL, Plaintiff, v. PEOPLE of the State of New York, Genesee State Park Commission, and Superintendent of Public Works of the State of New York, Defendants.
• Court: New York Supreme Court

Page 65

206 N.Y.S.2d 65

25 Misc.2d 841

Application of Cornelia R. BUELL, Petitioner, v. GENESEE STATE PARK COMMISSION, Respondent.

Cornelia R. BUELL, Plaintiff, v. PEOPLE of the State of New York, Genesee State Park

Commission, and Superintendent of Public Works of

the State of New York, Defendants.

Supreme Court, Monroe County.

Sept. 27, 1960.

Robert F. MacCameron, Rochester, for plaintiff.

Louis J. Lefkowitz, Atty. Gen., Edward R. Amend, Asst. Atty. Gen., of counsel for defendants.

CHARLES LAMBIASE, Justice.

The Genesee State Park Commission, pursuant to § 676-a of the Conservation Law of the State of New York, did on or about October 13, 1959 acquire, through eminent domain, property of Cornelia R. Buell above named, deemed necessary by said Commission to be acquired for the purposes of the Lake Ontario State Parkway.

Cornelia R. Buell, above named, instituted an Article 78 Civil Practice Act proceeding against the above named respondent, Genesee State Park Commission, in which she alleges, among other things, 'That on information and belief the said attempted appropriation of Petitioner's property was not in fact for purposes of Lake Ontario State Parkway, as stated in said appropriation papers, nor for any public use, but solely for a private use, namely that of obtaining income from the rental thereof, * * *' (Petition, para. Sixth, in part); and the object of which is stated in the prayer for relief as follows:

'Wherefore, Petitioner prays, pursuant to Article 78 of the Civil Practice Act, for an order nullifying the said attempted appropriation of Petitioner's property, and a determination that title to said premises remains in Petitioner, unaffected by said attempted appropriation; that an order issue immediately directing the Respondent to show cause why said relief should not be granted, which order to show cause shall also direct that pending the final order herein and until the further order of this Court, any further proceedings on the part of Respondent in relation to or pursuant of the said attempted appropriation of Petitioner's property be stayed; and for such other and further relief as the Court may deem just and proper.'

By show cause order issued in said proceeding, respondent has been stayed as requested in the prayer for relief.

Upon the return day, the Article 78 proceeding was adjourned and pending this adjournment, petitioner therein commenced an action under Article 15, Real Property Law, against the People of the State of New York, Genesee State Park Commission, and the Superintendent of Public Work of the State of New York, in which she alleges the 'attempted' appropriation to be illegal, ineffective, and invalid for the same reason set forth in her Article 78 proceeding, and in which she pleads a second cause of action for a threatened trespass and entering upon her premises causing damages and injury. The prayer therein is as follows:

'A. That the defendants and each and every one of them, and every person claiming under them or under any of them be barred from all claim to an estate or interest in the property described in Paragraph Fourth of this complaint;

'B. That it be adjudged and finally determined that Plaintiff is the lawful owner and is vested with an absolute and unencumbered title in fee to the property described in Paragraph Fourth of this complaint;

'C. That the defendants Genesee State Park Commission and Superintendent of Public Works of the State of New York, and their officers, agents, servants, employees, contractors, sub-contractors and successors be perpetually enjoined and restrained from entering on Plaintiff's said premises and doing any act in contravention of the Plaintiff's ownership thereof;

'D. That the Plaintiff recover her costs and disbursements against any and all defendants answering herein; and

'E. That the Plaintiff have such other and further relief as to the Court may seem just and proper.'

In sum, Cornelia R. Buell above named is contesting the appropriation of her lands and has instituted an Article 78 proceeding and an Article 15, Real Property Law, action in attempts to set aside the appropriation by the State. She does not claim that there has not been compliance with the requirements of § 676-a of the Conservation Law. She does, however, in both of the pending court matters, in effect, allege that the appropriation was for a private and not a public use.

There is a motion now before us in the Article 78 proceeding to dismiss the same on the grounds: that there is an action pending for the same relief in an Article 15, Real Property Law, action, so-called; that the same does not set forth a cause of action; that the court has no jurisdiction of the subject matter in this proceeding; and for such other and further relief as to the court may seem just and proper. There is also a motion in the Real Property Law, Article 15, action to dismiss on the grounds that there is another proceeding pending for the same relief, and...