Sessa v. State

• Citation: 408 N.Y.S.2d 547,63 A.D.2d 334
• Court: New York Supreme Court — Appellate Division
• Decision Date: 27 July 1978
• Parties: Leonard SESSA et al., Appellants, v. STATE of New York, Respondent.

Page 547

408 N.Y.S.2d 547

63 A.D.2d 334

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

Supreme Court, Appellate Division, Third Department.

July 27, 1978.

Samuel Goldstein & Sons, New York City (Arthur D. Goldstein, New York City, of counsel), for appellants.

Louis J. Lefkowitz, Atty. Gen., Albany (Martin J. Siegel and Ruth Kessler Toch, Albany, of counsel), for respondent.

OPINION FOR AFFIRMANCE

MAIN, Justice.

Claimants were owners, as tenants in common, of a parcel of land in Suffolk County when, on April 7, 1970, the State appropriated a portion thereof for the construction of the Long Island Expressway by the filing of a description and map in the Suffolk County Clerk's office. Personal service was thereafter completed on all of the claimants on January 14, 1971, but no claim was ever filed on their behalf. Finally, on September 7, 1976, claimants moved for permission to file a late claim pursuant to subdivision 6 of section 10 of the Court of Claims Act, which was enacted by Chapter 280 of the Laws of 1976, effective September 1, 1976. Holding that the claim was time-barred on the effective date of subdivision 6 and that that enactment should not be retrospectively applied so as to resurrect said claim, the court denied claimants' motion, and this appeal ensued.

Seeking a reversal of the court's order denying their motion, claimants now argue that our earlier decisions in Paul v. State of New York, 59 A.D.2d 800, 398 N.Y.S.2d 768 and Lewis v. State of New York, 60 A.D.2d 675, 399 N.Y.S.2d 947, are controlling in their situation and that, in accordance therewith, subdivision 6 must be retrospectively applied to their claim. For the reasons that will follow, however, and particularly in light of the Court of Appeals subsequent holding in Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453, we cannot agree and instead conclude that our position in Paul, supra, and Lewis, supra, must be overruled.

Therefore, we hold that the order of the Court of Claims should be affirmed. In so ruling, we would initially point out that as a general rule, absent a clear expression of legislative intent to the contrary, amendatory statutes are to be given prospective application only (Matter of Mulligan v. Murphy, 14 N.Y.2d 223, 250 N.Y.S.2d 412, 199 N.E.2d 496), particularly where, as here, they carry an effective date In futuro (Matter of Deutsch v. Catherwood, 31 N.Y.2d 487, 341 N.Y.S.2d 600, 294 N.E.2d 193). Moreover, at all times relevant herein, a three-year limitation period was applicable to appropriation claims such as the instant one (Court of Claims Act, § 10, subd. 1), and this period was not altered by the enactment of subdivision 6 which by its express terms served only to expand the court's discretionary power to permit the filing of late claims. Such being the case and since personal service had been completed on all of the claimants as of January 14, 1971, it is beyond dispute that the statute of limitations had run on the instant claim with regard to all of the claimants as of January 14, 1974. That being so, with the passing of this latter date, the claim "had passed beyond the power of judicial recall", and there was no longer any need for the State, under the law as it existed at that time, to continue to safeguard its interests "by gathering and preserving evidence" relative to the claim (Matter of Beary v. City of Rye supra ). Under these circumstances, for us to now resurrect the claim many years later by holding subdivision 6 to be retrospectively applicable thereto would obviously be highly prejudicial to the interests of the State, and we cannot justify such a course of action.

In our view, Matter of Beary, supra, cited above, presents a strikingly analogous situation involving legislation granting the judiciary greater discretion in extending the time to file a notice of claim against a public corporation (General Municipal Law, § 50-e, subd. 5). The Court of Appeals held in that case that the statute in question could be retrospectively applied to continue and extend the existence of claims which would have retained some viability on the new statute's effective date, even absent the retrospective application thereof, through the possible exercise of judicial discretion under the prior existing law to permit a late filing. As for claims which had finally expired and "passed beyond the power of judicial recall" on the new statute's effective date, however, the court ruled that the statute could not be retrospectively applied so as to revive them.

We find the court's rationale in Matter of Beary, supra controlling and persuasive and are unable to justify applying a different rule to claimants' situation here. Such being the case, subdivision 6 cannot be applied so as to give the present claim new life, said claim having finally expired more than two and one-half years prior to September 1, 1976. As Justice Cardozo stated in Hopkins v. Lincoln Trust Co., 233 N.Y. 213, 215, 135 N.E. 267, 267, such a revival would constitute "an extreme exercise of legislative power" and any uncertainties as to the Legislature's intentions in that regard should be "resolved against consequences so drastic".

The order should be affirmed, without costs.

Order affirmed, without costs.

GREENBLOTT, J. P., and LARKIN, J., concur.

MIKOLL and HERLIHY, JJ., dissent and vote to reverse in a separate opinion by HERLIHY, J.

HERLIHY, Justice (dissenting).

The majority contends that Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453, considered a problem of statutory construction so analogous to the amendment of the Court of Claims Act accomplished by Chapter 280 of the Laws of 1976 as to require a finding that the instant claim, as well as the claims heretofore considered in Paul v. State of New York, 59 A.D.2d 800, 398 N.Y.S.2d 768, and Lewis v. State of New York, 60 A.D.2d 675, 399 N.Y.S.2d 947, must be dismissed for a failure of timely filing.

In Beary the court was considering the recent amendment to section 50-e of the General Municipal Law which had the effect of expanding the grounds for a discretionary late filing of a notice of claim (L.1976, ch. 745, § 2). The time within which a claim had to be filed against the public corporations affected by section 50-e was not affected by the amendment thereto and, of course, the section is effective only as to tort actions. Section 50-i of the General Municipal Law prescribed that such a tort claim Must, subject to applicable tolling provisions, be sued within one year and 90 days both before and after the amendment to section 50-e as considered in Beary.

Unlike the amendment to section 50-e of the General Municipal Law, the amendment to section 10 of the Court of Claims Act (hereinafter, section 10) expands the discretionary power of the Court of Claims to permit Both a late filing of the Notice of intention and the Claim itself. Further, although the majority contend otherwise, the amendment to section 10 specifically extends the time within which an appropriation claim may be filed from three years to six years, although such an extension of time is conditioned upon a favorable exercise of discretion by the Court of Claims. There is no issue of actual notice as to this type of claim.

The examination of the subject 1976 amendments to the Court of Claims Act and the General Municipal Law requires the conclusion that any similarity is not realistic.

In considering the question of retroactivity, it is apparent from the decision in Matter of Beary v. City of Rye, supra that unless there is a clear intent on the part of the Legislature to grant retroactivity, this claim is "beyond the power of judicial recall". However, unlike those "notice of claim" factors which had prompted the Legislature to aid claimants in tort cases under the General Municipal Law, Chapter...