Town of Coxsackie v. Dernier
| Decision Date | 15 November 1984 |
| Citation | 482 N.Y.S.2d 106,105 A.D.2d 966 |
| Parties | In the Matter of TOWN OF COXSACKIE, Respondent, v. Eileen J. DERNIER et al., as Executrices of the Estate of Mabel D. Phillips, Deceased, Appellants, et al., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Peter H. Harp, New Paltz, for appellants.
Joshua J. Effron, Delmar, for respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, entered September 16, 1983 in Greene County, which granted petitioner's application, in a proceeding pursuant to EDPL 402, to obtain a permanent easement over respondents' land.
Petitioner commenced this proceeding to obtain a permanent easement across the lands of respondents for the expansion and improvement of its sanitary sewer system. Following a public hearing, petitioner issued a resolution on May 10, 1983 authorizing the establishment of a sewer improvement area (see Town Law, § 209-q). It appears that all necessary rights of way to complete the project had been acquired, except for an easement over the property of respondent Mabel D. Phillips. By verified petition dated June 14, 1983, petitioner applied for an order authorizing the filing of an acquisition map and directing an immediate vesting of title to the easement. As a basis for exemption from the requirements under article 2 of the EDPL, petitioner stated that the acquisition was de minimis in nature, as determined in the May 10, 1983 resolution (EDPL 206, subd. ). Respondent Mabel D. Phillips opposed the requested relief in her answer. Special Term granted the petition and held that petitioner was exempt from the provisions of article 2 of the EDPL. The instant appeal by respondent Phillips ensued, * and we affirm.
Preliminarily, it is important to note that Special Term was authorized to pass upon the exemption issue. By section 6 of chapter 356 of the Laws of 1982, the Legislature amended EDPL 207 by substituting the phrase "made pursuant to section two hundred four" in place of "made pursuant to this article" in subdivision and by deleting the reference to exemptions in subdivision The purpose of this amendment was to correct a technical deficiency in EDPL 207 pertaining to judicial review of a condemnor's exemption claim. As noted in the concurring opinion in Matter of Aswad v. City School Dist. of City of Binghamton, 74 A.D.2d 972, 974, 425 N.Y.S.2d 896 EDPL 207 (subd. ) provided for judicial review of a condemnor's determination after a public hearing, but failed to provide for review of an exemption determination, leaving unclear when the exemption passed beyond judicial scrutiny (see, also, County of Monroe v. Morgan, 83 A.D.2d 777, 443 N.Y.S.2d 467). This problem was exacerbated by the fact that EDPL 207 (subd. ) and 208 provided that a challenge to the validity of an exemption was within the exclusive jurisdiction of the Appellate Division. In contrast, the effect of the new legislation is to limit the broad jurisdictional mandate of EDPL 208 by, inter alia, removing exemption challenges from the exclusive jurisdiction of the Appellate Division (see Matter of City of Schenectady v. Flacke, 100 A.D.2d 349, 352, 475 N.Y.S.2d 506). It follows that a contestant need not commence a proceeding for judicial review under EDPL 207, but may properly challenge the exemption, as here, by way of an answer in an acquisition proceeding. Having thus concluded, we agree with Special Term that the condemnor could reasonably conclude that the acquisition was de minimis and, therefore, properly exempt (EDPL 206, subd. see Matter of City of Yonkers v. Hvizd, 93 A.D.2d 887, 461 N.Y.S.2d 408, app. dsmd. 60 N.Y.2d 821; Matter of American Tel. & Tel. Co. v. Salesian Soc., 77 A.D.2d 706, 430 N.Y.S.2d 408, app. dsmd. 51 N.Y.2d 877, 433 N.Y.S.2d...
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