Sessa v. State

• Citation: 388 N.Y.S.2d 513,88 Misc.2d 454
• Parties: Leonard SESSA et al., Movants, v. The STATE of New York, Respondent.
• Decision Date: 19 October 1976
• Court: New York Court of Claims

Page 513

388 N.Y.S.2d 513

88 Misc.2d 454

Leonard SESSA et al., Movants, v. The STATE of New York, Respondent.

Court of Claims of New York.

Oct. 19, 1976.

Samuel Goldstein & Sons, by Arthur Goldstein, New York City, for movants.

Louis J. Lefkowitz, Atty. Gen., by Dace Epermanis, Asst. Atty. Gen., for respondent.

MEMORANDUM OPINION

ALBERT A. BLINDER, Judge.

This is an application for permission to file a late claim pursuant to subdivision 6 of Section 10 of the Court of Claims Act, as amended by Chapter 280 of the Laws of 1976.

Movants were tenants in common of a parcel of land, a portion of which was appropriated by the State of New York for the construction of the Long Island Expressway. The affidavit supporting the motion indicates that (1) the movants retained one Harold William Harrison, ¹ a Judge of the Justice Court of Great Neck, to represent them in connection with the State's appropriation, in April of 1968; (2) thereafter Harrison closed his law offices and abandoned his files and (3) a receiver was appointed to preserve them by the Second Department's Joint Grievance Committee. It also indicates that during a period from 1970 to 1974, (1) Harrison was charged by the United States with income tax evasion, (2) was convicted and spent time in jail and (3) not until August of 1974 did he advise the movants to engage other counsel. (A written retainer agreement was entered into on August 30, 1974 by and among movants, movants' present counsel and Harrison.) When movants' present counsel undertook the representation they noted in their retainer that the time to file a claim had expired in January 1974 and that enabling legislation would be required.

It is not disputed that the State of New York, pursuant to Section 30 of the Highway Law, filed appropriation maps with reference to movants' property on April 7, 1970 in the office of the County Clerk of Suffolk County. Thereafter, on June 18, 1970 a copy of the Notice of Appropriation and the description of the appropriation maps were served on movant Leonard Sessa. On October 28, 1970 copies of the same were served on movant Philip DeFiglia, and on January 14, 1971 on movant I. Edward Sessa, thereby completing personal service on all.

The moving affidavit also indicates that various correspondence was received by the movants pertaining to the appropriation including a letter to DeFiglia, dated September 21, 1970, requesting an appointment to bring the map and Notice of Appropriation to him at his home or business. The September 21, 1970 letter was turned over to Harrison who on October 9, 1970 replied to the State. Other correspondence included a letter addressed to all the movants advising that copies of the map and description had been filed with the Department of State. This was marked 'Rec'd July 16, 1974' by a person or persons unknown and was sent to Harrison.

It is clear that movants entrusted the filing of a claim to their attorney, Harrison. It is also apparent that Harrison neglected to pursue the matter, failing timely to file a claim for the appropriation.

The affidavit states that movants were successful in having enabling legislation introduced and passed in both Houses of the Legislature in 1975. The affidavit states, that it was subsequently 'pocket vetoed by the Governor.' The Court has reviewed a copy of the Governor's message dated August 5, 1975 which vetoed 18 specific private bills. Movants' bill was not included therein.

Further research by the Court disclosed that movants' bill was introduced in the Assembly as A--4593. While the bill was indeed passed by the Assembly, it never was voted out of the Senate Finance Committee.

Movants further allege that in the 1976 legislative session a new enabling bill passed the Assembly but was not discharged from the Senate Finance Committee because of the subsequent introduction and passage of the Governor's proposed legislation which became Chapter 280 of the Laws of 1976. No enabling statute has ever passed and none ever became law.

Movants allege that the State has in its possession an appraisal of the portion of the property appropriated in the approximate sum of $67,250.00 and that discussions with an appraiser of their choice indicate a claim for direct damage alone in excess of $300,000.00. The proposed claim annexed to the motion papers is for $500,000.00.

It is further stated that the State of New York having appropriated the property has full knowledge of the essential facts constituting the claim and has had an opportunity to investigate the circumstances underlying it. Movants also allege that the State will not be substantially prejudiced by the filing of the claim and that they have no other available remedy.

The Law

Section 10 of the Court of Claims Act sets forth the time for filing claims and notices of intention to file claims. It provides that '(n)o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim.' Subdivision 1 of Section 10 provides:

'A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall be filed within three years after the accrual of such claim, or where title is vested by the filing of a description and map in the office of the county clerk or register, then within three years after personal service of a copy of such description and map and notice of filing thereof or if personal service cannot be made within the state, then within three years after the filing of the description and map and the recording of notice of filing thereof.'

As we stated in Leibowitz v. State of New York, 82 Misc.2d 424, at p. 427, 371 N.Y.S.2d 110, at p. 112, in discussing the former provision for applications to file late claims:

'Section 10 of the Court of Claims Act, provides that the timeliness of filing is a jurisdictional prerequisite to making a claim against the State, DeMarco v. State of New York, 43 A.D.2d 786, 350 N.Y.S.2d 230; the appellate courts have held that subdivision 5 of section 10 of the Court of Claims Act must be strictly construed. (Bommarito v. State of New York, 35 A.D.2d 458, 317 N.Y.S.2d 581.) The requirements of subdivision 5 of section 10 are conjunctive and therefore, failure to satisfy any one of them is fatal, Turner v. State of New York, 40 A.D.2d 923, 338 N.Y.S.2d 329, regardless of whether or not the State will be prejudiced by granting the relief sought. (Society of New York Hosp. v. State of New York, 21 A.D.2d 733, 250 N.Y.S.2d 161.)'

The enactment of Chapter 280 of the Laws of 1976 was pursuant to a request by the Governor which was initially stated in his veto message dated August 5, 1975 in the following language:

'By disapproving these bills, my chief purpose is to call attention to the need for an amendment to the general laws so that in future private claims bills will no longer be necessary to avoid injustices. I intend to submit at the next legislative session proposed legislation to enable this subject to be handled in the future in a logical, fair and orderly way, in place of the haphazard, careless and discriminating procedure which has been followed up to this time. An overriding concern of this legislation will be to insure to every citizen of this State an equal opportunity to have his claim heard and considered fairly.'

The request was repeated during the 1976 legislative session together with a draft of the proposed legislation. Thereafter the Legislature enacted and the Governor signed Chapter 280 which amended subdivision 6 of Section 10 and which provides as follows:

'A claimant who fails to file a claim or notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules. For the purpose of this subdivision, a claim against the state arising under subdivision one of this section shall be deemed an action upon an implied contractual obligation. The application for such permission shall be made returnable at any regular or special session of the court and may be heard and determined by any judge thereof. The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application. In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file a timely claim or notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.'

As can be seen by a comparison between the old subdivision 5 and the new subdivision 6, the latter provisions for permitting the filing of a late claim are less stringent and accord the Court more discretion. The Court now is only mandated to Consider several enumerated factors before making its determination. It is clear that the factors stated in subdivision 6 need not be conjunctively determined. Unlike the requirement of the old subdivision 5 of Section 10, there is no expressed necessity to satisfy every one of the enumerated factors before granting relief.

Movants argue that they have done all that could reasonably be expected of them in their own behalf. They state that they hired an attorney to respond to the legal action long before the appropriation actually took place. We assume this to be true just as we assume that the State...