Biz-Biz Corporation v State of New York

Biz-Biz Corp. v State of New York 2006 NY Slip Op 03827 [29 AD3d 720] May 16, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

Biz-Biz Corporation, Appellant,
v
State of New York, Respondent.

—[*1]

In a claim to recover damages for the taking of real property without just compensation, the claimant appeals from an order of the Court of Claims (Lack, J.), dated December 3, 2004, which granted the defendant's motion to dismiss its claim as untimely.

Ordered that the order is affirmed, with costs.

The Court of Claims correctly dismissed the claim for damages, arising from the appropriation by the defendant State of New York of a parcel of real property owned by the claimant, on the ground that it was untimely (see EDPL 503 [A]; cf. Court of Claims Act § 10 [1]). Where, as here, a landowner executes an agreement for advance payment, and an advance payment of just compensation has been made, the failure to file a claim within three years of service of the notice of acquisition will result in the matter being deemed fully settled (see Boyajian v State of New York, 293 AD2d 560, 561 [2002]; Ebbets v State of New York, 64 AD2d 794 [1978], affd 47 NY2d 973 [1979]), notwithstanding that the service of the notice of acquisition was effected more than 90 days after the filing of the acquisition maps (see EDPL 502 [A]; cf. Matter of Ingham v Oswego County, 178 AD2d 796, 797 [1991]; San Marco Constr. Corp. v Aetna Cas. & Sur. Co., 162 AD2d 514, 518 [1990]). Moreover, and contrary to the claimant's contention, Eminent Domain Procedure Law § 502 (A), which authorizes service [*2]of the notice of acquisition by certified mail, supersedes the more restrictive service provisions of the Court of Claims Act (see EDPL 705; Boyajian v State of New York, supra at 561). Because the owner of the real property that is the subject of the instant dispute was served with the notice of acquisition by certified mail on December 16, 1996 the matter was deemed fully settled upon the expiration of the three-year statute of limitations on December 16, 1999. Florio, J.P., Crane, Goldstein and Spolzino, JJ., concur.