Turner v. State Dept. of Transp.

• Decision Date: 20 October 1983
• Citation: 97 A.D.2d 628,469 N.Y.S.2d 30
• Parties: In the Matter of John TURNER et al., Petitioners, v. STATE of New York DEPARTMENT OF TRANSPORTATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 30

469 N.Y.S.2d 30

97 A.D.2d 628

In the Matter of John TURNER et al., Petitioners, v. STATE of New York DEPARTMENT OF TRANSPORTATION, Respondent.

Supreme Court, Appellate Division, Third Department.

Oct. 20, 1983.

Robert J. Krzys, Amsterdam, for petitioners.

Robert Abrams, Atty. Gen. (Alan W. Rubenstein, Albany, of counsel), for respondent.

Before SWEENEY, J.P., and KANE, MAIN, MIKOLL and YESAWICH, JJ.

MEMORANDUM DECISION.

Proceeding initiated in this court pursuant to EDPL 207 to review a determination of the State Department of Transportation which authorized acquisition of portions of petitioners' land for the improvement of approximately 1.7 miles of New York State Route 30 in Montgomery County.

After a public hearing held on September 30, 1982 in the Town of Florida, County of Montgomery, to apprise area residents of the proposed reconstruction, respondent Department of Transportation authorized acquisition by the State of portions of petitioners' property fronting on both sides of Route 30 to complete the project. Aggrieved by that determination, petitioners seek to have it reviewed. Review may be had pursuant to EDPL 207 (subd. [A] ) "within thirty days after the condemnor's completion of its publication of its determination and findings * * * ". Publication of respondent's determination and findings was completed on December 21, 1982. Since the petitions herein were not served until January 31, 1983 and February 2, 1983, these proceedings are time barred. Petitioners contend that respondent's failure to file a transcript of the public hearing until after these proceedings were commenced bars assertion of the affirmative defense of lack of timeliness. This is not particularly persuasive given that a taped record of the hearing was available to petitioners at all times. Furthermore, the fact that the petitions were effectively drafted without the benefit of a written transcript after the Statute of Limitations had run supports our finding that the petitions could have been drafted and served timely.

Petitions dismissed, without costs.