Huie, In re

• Decision Date: 29 November 1967
• Parties: , 232 N.E.2d 642 In the Matter of Irving V. A HUIE et al., Constituting the Board of Water Supply of the City of New York, Respondents, Relative to Acquiring Title to Real Property on Behalf of the City of New York, in the County of Sullivan, for the Purposes of Providing an Additional Supply of Water for the Use of the City of New York. Abe Furman, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 610

285 N.Y.S.2d 610

20 N.Y.2d 568, 232 N.E.2d 642

In the Matter of Irving V. A HUIE et al., Constituting the Board of Water Supply of the City of New York, Respondents Relative to Acquiring Title to Real Property on Behalf of the City of New York, in the County of Sullivan, for the Purposes of Providing an Additional Supply of Water for the Use of the City of New York Abe Furman, Appellant.

Court of Appeals of New York.

Nov. 29, 1967.

Louis B. Scheinman, Woodbourne, for appellant.

J. Lee Rankin, Corp. Counsel (Paul L. Owens, Kingston, Stanley Buchsbaum, New York City, and Theodore R. Lee, Woodstock, of counsel), for respondents.

BURKE, Judge.

Claimant appeals from an order of the Appellate Division, Third Department, unanimously reversing an order of the Supreme Court, Sullivan County, granting claimant's motion requesting that the Commissioners of Appraisal be directed to hear and determine claimant's claim for damages to his property allegedly caused by the Neversink Dam.

Although not described as such, the instant motion was, and this is clear from the moving papers submitted in support of it, one for reargument of a motion earlier made and decided by Justice DECKELMAN at Special Term, from which no appeal was taken and which it was now sought to have vacated. The motion for reargument was made long after claimant's time to appeal from the original order had expired. It was granted on the basis of Justice DECKELMAN'S belief that Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255, decided subsequent to his earlier decision, called for a different decision than that which he had earlier made.

The question of Schroeder's applicability to the facts of this case is difficult indeed, but before this issue can even be reached there are preliminary problems which must be resolved, namely, determination of whether the order in this case is a final order appealable to this court and determination of whether the grant of reargument after claimant's time to appeal had elapsed was proper as a matter of law.

In a situation such as this, where the Effect of an Appellate Division reversal of Special Term's grant of reargument and the entry of a new final order is to place the parties back precisely where they were under the original final determination, 'two competing principles operate.' (Cohen and Karger, Powers of the New York Court of Appeals, p. 151.) There is the principle of finality and there is the 'Countervailing * * * consideration that the decision by the Special Term constitutes a new and original final determination.' (Ibid.) In the past this court has, however, consistently found such orders to be final for purposes of our jurisdiction. (See Cohen and Karger, pp. 150--153, and the cases cited therein; see, also, Humbeutel v. Humbeutel, 305 N.Y. 159, 161, 111 N.E.2d 429, 430, citing S.J.E. Bldg. Corp. v. Matter O. M. Constr. Co., 265 N.Y. 282, 192 N.E. 413, and Hansen v. City of New York, 299 N.Y. 136, 85 N.E.2d 905.)

More certainly fatal to appellant's cause was the error of Special Term in granting his motion to set aside the prior order on the basis of Schroeder, decided by the United States Supreme Court in 1962, five years after the original order was served upon appellant. This earlier determination was a final order settling the rights of the parties under existing law (as the court viewed it). It held that appellant's claim was barred by the Statute of Limitations and, additionally, that the relief requested was available only in an article 78 proceeding. No appeal was taken from this order. (Instead, appellant brought an article 78 proceeding, and here also failed, with Special Term there properly deciding that the Statute of Limitations issue had been conclusively determined by Justice DECKELMAN.)

Appellant's attorney throughout his papers claims that he was forced into a 'procedural trap' by Special Term's statement in its opinion that the relief requested was available only in an article 78 proceeding, but this is simply not so. Special Term clearly indicated that its decision was based upon the fact that the claim was not timely, as well as upon the fact that an article 78 proceeding would be necessary. With no appeal having been taken from this determination, the city was entitled to rely upon it as a final determination of the matter.

Special Term's later vacation of its prior determination on the basis of Schroeder was in our view improper as a matter of law. In Deeves v. Fabric Fire Hose Co., 14 N.Y.2d 633, 249 N.Y.S.2d 423, 198 N.E.2d 595, we considered this precise issue. There the question squarely presented was whether an original decision determining the rights and positions of the parties should be reversed on a motion for reargument made after the expiration of the time to appeal on the sole ground that, in the intrim, on appellate court has overruled its own or another statement of existing law. The Appellate Division had decided that a motion for...