Hargett v. Town of Ticonderoga

• Decision Date: 20 November 2008
• Docket Number: 504804.
• Citation: 867 N.Y.S.2d 571,56 A.D.3d 1016,2008 NY Slip Op 09147
• Parties: GEORGIA HARGETT, Appellant, v. TOWN OF TICONDEROGA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

56 A.D.3d 1016

867 N.Y.S.2d 571

2008 NY Slip Op 09147

GEORGIA HARGETT, Appellant, v. TOWN OF TICONDEROGA et al., Respondents.

504804.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 20, 2008.

Appeal from an order of the Supreme Court (Dawson, J.), entered February 22, 2008 in Essex County, which, among other things, granted defendants' cross motion for summary judgment dismissing the complaint.

KANE, J.

In a prior proceeding pursuant to EDPL 207 (A), this Court held that defendant Phillip Heustis, highway superintendent for defendant Town of Ticonderoga, exceeded his authority when he condemned plaintiff's property, purportedly as an exercise of eminent domain (Matter of Hargett v Town of Ticonderoga, 35 AD3d 1122 [2006], lv denied 8 NY3d 810 [2007]). Plaintiff commenced this action, pursuant to EDPL 702 (B), seeking reimbursement for legal costs and expenses incurred during, and leading up to, the prior proceeding. Supreme Court denied plaintiff's motion for summary judgment and granted defendants' cross motion for summary judgment dismissing the complaint, prompting plaintiff's appeal.

Initially, Supreme Court had subject matter jurisdiction over this case. Supreme Court is the state's court of general jurisdiction and is presumed to have jurisdiction unless there is some reason to question it (see NY Const, art VI, § 7; Matter of Piotrowski v Town of Glenville, 101 AD2d 654 [1984]). The issues raised herein could not have been previously considered 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 at 1123).

Pursuant to EDPL 702 (B), plaintiff is entitled to recoup her reasonable counsel fees related to the condemnation proceedings. To gain title to property through eminent domain, a condemnor must follow a two-step process (see Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 543 [2006]). First, pursuant to EDPL article 2, the condemnor must determine to condemn the property through a hearing, findings procedure or authorized alternative procedure (see EDPL 203, 204, 206). "Second, pursuant to EDPL article 4, the condemnor must seek the transfer of title to the property by commencing a judicial proceeding known as a vesting proceeding" (Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d at 543). Here, defendants held a hearing and determined to condemn plaintiff's property, satisfying the first step, but never reached the second step due to this Court's annulment of the original determination.

While the Appellate Division may only consider four specific questions delineated by statute when reviewing a proposed acquisition after the first step (see EDPL 207 [C]), the question before the trial court in the second step is mainly limited to the value of the condemned property. One of the delineated questions under the first step is whether "the proposed acquisition is within the condemnor's statutory jurisdiction or authority" (EDPL 207 [C] [2]). As conceded by defendants at oral argument, if that question is not raised before the Appellate Division by a challenge to the condemnor's actions under EDPL article 2, the 30-day statute of limitations bars the 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], lv denied 66 NY2d 605 [1985]). Thus, in providing for costs and counsel fees after "a court of competent jurisdiction determines that the condemnor was not legally authorized to acquire the property," EDPL 702 (B) can only be authorizing an award of such costs and fees related to a decision by the Appellate Division under EDPL 207. In fact counsel fees...