N. Dock Tin Boat Ass'n, Inc. v. N.Y. State Office of Gen. Servs.

• Citation: 947 N.Y.S.2d 626,2012 N.Y. Slip Op. 04802,96 A.D.3d 1186
• Parties: In the Matter of NORTH DOCK TIN BOAT ASSOCIATION, INC., et al., Appellants, v. NEW YORK STATE OFFICE OF GENERAL SERVICES et al., Respondents, et al., Respondents.
• Decision Date: 14 June 2012
• Court: New York Supreme Court Appellate Division

96 A.D.3d 1186
947 N.Y.S.2d 626
2012 N.Y. Slip Op. 04802

In the Matter of NORTH DOCK TIN BOAT ASSOCIATION, INC., et al., Appellants,
v.
NEW YORK STATE OFFICE OF GENERAL SERVICES et al., Respondents, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

June 14, 2012.

[947 N.Y.S.2d 627]

McNamee, Lochner, Titus & Williams, P.C., Albany (Scott C. Paton of counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for New York State Office of General Services, respondent.

Rapport, Meyers, Whitbeck, Shaw & Rodenhausenn, L.L.P., Hudson (Victor M. Meyers of counsel), for City of Hudson, respondent.

Before: PETERS, P.J., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ.

GARRY, J.

[96 A.D.3d 1186]Appeal from a judgment of the Supreme Court (McGrath, J.), entered April 8, 2011 in Columbia County, which, in [96 A.D.3d 1187]a combined proceeding pursuant to CPLR article 78 and actions pursuant to RPAPL article 15 and for declaratory judgment, granted motions by respondents Office of General Services and City of Hudson to dismiss the petition/complaint.

Petitioners occupy cabins located on a 14.4–acre parcel of real property (hereinafter the subject property) in an area of the City of Hudson, Columbia County that was formerly submerged under the North Bay of the Hudson River. In 2009, respondent City of Hudson applied to respondent Office of General Services (hereinafter OGS) for letters patent transferring the subject property from the State to the City pursuant to Public Lands Law § 75(7). In December 2009, the letters patent were executed by the Commissioner of General Services and approved as to form by the Attorney General and, on January 10, 2010, they were recorded with the Department of State and delivered to the City. Thereafter, petitioners commenced this combined CPLR article 78 proceeding and actions pursuant to RPAPL article 15 and for a declaratory judgment seeking to set aside the transfer and quiet title to the subject property. Petitioners contend that the State had no power to convey the property, having transferred it in 1785 to 18 individuals who founded the City (hereinafter the proprietors), and that petitioners subsequently acquired title by adverse possession. OGS and the City (hereinafter

[947 N.Y.S.2d 628]

collectively referred to as respondents) moved separately to dismiss the petition/complaint, and Supreme Court granted the motions. Petitioners appeal.

Supreme Court properly dismissed the cause of action pursuant to CPLR article 78 because it was not filed “within four months after the determination to be reviewed [became] final and binding” (CPLR 217[1] ). Such finality occurs when the decision maker has arrived at “a definitive position on the issue that inflicts actual, concrete injury [that] ... may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” (Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38 [2005];see Matter of Dugan v. Liggan, 90 A.D.3d 1445, 1447, 935 N.Y.S.2d 730 [2011] ). Petitioners contend that the conveyance of the subject property from the State to the City became final and binding when the letters patent were recorded in the Columbia County Clerk's office on January 20, 2010, so that the CPLR article 78 proceeding was timely when commenced on May 19, 2010, just less than four months later. However, a transfer of real property takes place “at the delivery of a properly executed deed, rather than when the deed is recorded” [96 A.D.3d 1188]( Cicero v. Aspen Hills II, LLC, 85 A.D.3d 1411, 1412, 926 N.Y.S.2d 680 [2011];seeReal Property Law § 244; Manhattan Life Ins. Co. v. Continental Ins. Cos., 33 N.Y.2d 370, 372, 353 N.Y.S.2d 161, 308 N.E.2d 682 [1974] ). Here, the transfer was accomplished when the State delivered the executed letters patent to the City on January 12, 2010; thereafter, no further administrative actions or other steps were available to petitioners to...