Hargett v. Town of Ticonderoga, 2008 NY Slip Op 50343(U) (N.Y. Sup. Ct. 2/7/2008)

• Decision Date: 07 February 2008
• Docket Number: 371-07.
• Citation: 2008 NY Slip Op 50343
• Parties: GEORGIA HARGETT, Plaintiff, v. TOWN OF TICONDEROGA and PHILLIP HUESTIS as the Highway Superintendent of the Town of Ticonderoga, Defendants.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 50343(U)

GEORGIA HARGETT, Plaintiff, v. TOWN OF TICONDEROGA and PHILLIP HUESTIS as the Highway Superintendent of the Town of Ticonderoga, Defendants.

371-07.

Supreme Court of the State of New York, Essex County.

Decided February 7, 2008.

Darrell W. Harp, Clifton Park, for Plaintiff.

FitzGerald Morris Baker Firth, PC, Glens Falls (John D. Aspland, Jr. of counsel), for Defendants.

JAMES P. DAWSON, J.

In 2005 the Defendants undertook to acquire rights in the Plaintiff's land by invoking the powers accorded the Town of Ticonderoga (Town) by Highway Law § 173. After the Town determined that it was in the public interest to acquire the rights, the Plaintiff successfully challenged that determination in a proceeding in the Appellate Division of Supreme Court, Third Department (see Matter of Hargett v. Town of Ticonderoga, 35 AD3d 1122 [2006], lv denied 8 NY3d 810 [2007]) when that court annulled the Town's determination. That challenge was pursuant to the procedure set out in EDPL 207 and 208, one which must be commenced in the Appellate Court. No action or proceeding with regard to the acquisition of the Plaintiff's land was ever commenced in this Court.

In 2007, the Plaintiff commenced this action to recover expenses, including attorneys fees, incurred in the process undertaken in 2005 as well as in the procedure in the Appellate Division and to date. This action is premised on EDPL 702. The Defendants have answered and the Plaintiff now moves for summary judgment on the complaint and the Defendants cross-move for summary judgment dismissing the complaint. Neither party contends that there are questions of fact requiring a trial. No other action or proceeding as between these parties is pending.

The parties both rely on EDPL 702 (B) for their sharply differing conclusions. That subsection states:

In the event that the procedure to acquire such property is abandoned by the condemnor, or a court of competent jurisdiction determines that the condemnor was not legally authorized to acquire the property ... the condemnor shall be obligated to reimburse the condemnee.

The Plaintiff contends that the Appellate Division determined that the condemnor was not legally authorized to acquire the property. The Defendants contend that the acquisition had not begun and consequently an award of expenses is inappropriate. That is, until a petition under EDPL 402 (B) is granted allowing the Defendant to file an acquisition map, it cannot be said that any vesting of title has occurred (see EDPL 103 [A]).

The Defendants' cross-motion is granted. The Court is not satisfied that it has subject matter jurisdiction of this action as there was no underlying action in this Court in which to grant an award of expenses. All the Court has is a complaint to recover expenses incurred before any litigation was begun and to recover expenses incurred in the proceeding in the Appellate Division. EDPL 702 is titled "Incidental Expenses" and that section follows a section entitled "Additional Allowance." The additional allowance is only available when the trial court issues an "order or award" (EDPL 701). It would seem that the same should apply to EDPL 702 as well. The expenses must be incidental to something. One definition of incidental refers to items "occurring as a fortuitous or minor concomitant" (The American Heritage Dictionary of the English Language, New College Edition). The Court concludes that incidental expenses are recoverable only as an incident to an order or award. If the expenses here are incidental to any order, it is the one made by the Appellate Division, but such occurred in a proceeding this Court lacks subject matter jurisdiction to consider (see EDPL 207, 208). Since there is nothing for these expenses to be incidental to at least nothing that could properly be brought before this Court there is no cause of action created by EDPL § 702 and no subject matter jurisdiction in this Court.

If the Court did have jurisdiction it would still not grant summary judgment for the Plaintiff. The Appellate Division did state that the Defendant "condemned a portion of the Plaintiff's land for the laying of a new highway" (Hargett, 35 AD3d at 1122) and went on to find that the Defendant Highway Superintendent "exceeded his authority in condemning the Plaintiff's property for purposes not related to his position" (id. at 1124). Having said that, the Defendants argue that the Town never "acquired" anything. If the Defendants' argument is accepted, the Plaintiff properly points out that cautious or unscrupulous "condemnors" (see EDPL 103 [D]) avoid liability for expenses while putting innocent "condemnees" (see EDPL 103 [C]) to considerable expense protecting their property.

The word "condemn" is not defined in the Eminent Domain Procedure Law. One of the definitions of condemn in Black's Law Dictionary is "[t]o determine and declare [property] to be assigned to public use" (Black's Law Dictionary [8th ed 2004], condemn). "Condemnee" is defined in EDPL 103 (C) as "the holder of any right ... in real property subject to an acquisition or proposed acquisition." "Acquisition" is defined in EDPL 103 (A) as "the act of vesting of title ... by virtue of the condemnor's exercise of the power of eminent domain." The Court concludes that the use by the Appellate Division of the term "condemn" is casual and inadvertent and not decisive of the issue at hand.

Unfortunately, the Eminent Domain Procedure Law does not define "procedure to acquire such property" as that term is used in EDPL 702 (B). Surely that term would include proceedings preliminary to...