Williamsburg Candy & Tobacco, Inc. v. State

• Decision Date: 09 January 1981
• Citation: 435 N.Y.S.2d 252,106 Misc.2d 728
• Parties: WILLIAMSBURG CANDY & TOBACCO, INC., Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 252

435 N.Y.S.2d 252

106 Misc.2d 728

WILLIAMSBURG CANDY & TOBACCO, INC., Claimant, v. The STATE of New York, Defendant.

Court of Claims of New York.

Jan. 9, 1981.

Dominick F. Callo, by Michael J. Kaper, New York City, for claimant.

Robert Abrams, Atty. Gen., by Diane L. Dubiac, Asst. Atty. Gen., for defendant.

OPINION

GERARD M. WEISBERG, Judge.

The question presented is whether the State Tax Commission's (Commission) unauthorized seizure of allegedly contraband cigarettes gives rise to a cause of action for the appropriation of personal property. (Court of Claims Act, § 9, subd. 2.)

On September 15, 1976 agents of the Commission seized 5,869 cartons of cigarettes belonging to claimant (Williamsburg), valued at $28,053.82. Simultaneously therewith, the Commission seized a quantity of cigarettes from Borough Hall Oxford Corporation (Borough Hall). Claimant had purchased the cigarettes from Borough Hall and had not yet paid for them. Both seizures were conducted under the claim that they were illegally stamped. On October 7, 1976, the Commission informed claimant that the seized property had been declared forfeited.

Borough Hall timely commenced an Article 78 proceeding against the Commission. In November, 1978 claimant discovered that Borough Hall had prevailed in that action and that a determination had been made that the cigarettes were not in fact improperly stamped. Williamsburg thereupon made a demand upon the Commission for the return of its property. Upon the Commission's refusal, claimant commenced an Article 78 proceeding on January 30, 1979. By Order dated October 22, 1979, a Justice of the Supreme Court dismissed the petition as being untimely brought, because more than four months had passed since the mailing of the notice of forfeiture. Claimant's efforts to obtain a reversal of this decision were unsuccessful, culminating in a motion for leave to appeal to the New York Court of Appeals which was denied on September 2, 1980.

Meanwhile, on July 11, 1978 Borough Hall instituted suit against Williamsburg in Supreme Court, Kings County for the purchase price of the cigarettes. Claimant cross-claimed naming the Commission as a third-party defendant. The State's motion to dismiss the third-party complaint was denied without prejudice. Borough Hall's action against Williamsburg was settled on September 16, 1980 for the sum of $34,773.82, which was paid.

On October 7, 1980 Williamsburg moved for permission to file a late claim under subdivision 6 of section 10 of the Court of Claims Act. The proposed claim submitted therewith recites claimant's ownership of the cigarettes, the wrongful and unlawful seizure by the State, a demand for their return and the Commission's refusal to comply. Paragraph 6 thereof states "(t)hat said wrongful and unlawful seizure was permanent in nature constituting an appropriation for which claimant is entitled to recover said property or in the alternative to be paid just compensation." Damages demanded are in the sum of $34,773.82, the amount of the judgment paid by Williamsburg to Borough Hall.

The proposed claim thus styles itself one for the appropriation of personal property. The jurisdictional requirements applicable to such a claim are contained in subdivision 4 of section 10 of the Court of Claims Act which provides that "(a) claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section ... shall be filed within six months after the accrual of such claim, unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after such accrual." (Emphasis added.) Since this cause of action accrued on or about September 15, 1976, it was not timely commenced. However, for purposes of subdivision 6 of section 10 of the Court of Claims Act, a motion to permit a late filing may be made "... 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." This phrase is problematic since an appropriation claim cannot by nature be commenced against anyone but the State of New York or certain public authorities. Recognizing this, the Legislature provided that for the purposes of subdivision 6 of section 10 of the Court of Claims Act, a claim for the appropriation by the State of lands or any right, title or interest in or to lands "... shall be deemed an action upon an implied contractual obligation," carrying a six year statute of limitations. (CPLR 213.) The patent omission of any reference to a claim for the appropriation of personal property is most probably a legislative oversight, and we conclude that such a claim similarly bears a six year statute of limitations. Alternatively, subdivision 1 of section 213 of the Civil Practice Law and Rules may be invoked for an action "... for which no limitation is specifically prescribed by law." Therefore, the proposed claim for appropriation is not time-barred.

Having overcome one potential hurdle, claimant is immediately met with one more serious. That is, whether the claim "appears to be meritorious," a factor which claimant must establish to permit the exercise of the Court's discretion. (Court of Claims Act, § 10, subd. 6.) The novel question is squarely presented whether the seizure of claimant's cigarettes rightly occasions the invocation of subdivision (a) of section 7 of Article 1 of...