East Harlem Unity Communications, Inc. v G & S Invs.
Annotate this CaseDecided on June 30, 2008
Mount Vernon City Ct
East Harlem Unity Communications, Inc., Plaintiff,
against
G & S Investors, Defendant.
CC 1803-08
Adam Seiden, J.
A trial was held in this commercial claims action where the plaintiff seeks to recover damages for conversion of a public pay phone owned and operated by the plaintiff. The parties declined to hold a hearing and have submitted this matter to the Court for decision on papers.
The plaintiff in this case contends that it is the owner and operator of a public pay phone which was located on the sidewalk of a lot at 1-9 N. Main Street, Port Chester, New York. The plaintiff asserts that information about the phone's ownership was listed on the pay phone. The building previously in existence at this location was demolished after being taken by eminent domain by the Village of Port Chester. The defendant in this case, G & S Investors, was hired by the Village of Port Chester to demolish the building at that location. As part of the demolition, the defendant destroyed the pay phone and disposed of it. The plaintiff contends that the defendant's destruction of its phone constituted a conversion of private property, and that the defendant should therefore be found liable for the cost of the pay phone and the value of its lost income.
According to affidavits submitted by the defendant, although its representatives had seen a pay phone installed on a pole in the sidewalk at the above location, there was no information on the phone as to who owned it. The defendant asserts that it contacted Verizon with the phone's description and location, but were told they had no record of the phone. Further, they had not been given any information regarding the phone from the Village of Port Chester, who hired them to perform the demolition.
The defendant asserts that an Order of Judgment in Condemnation was entered on July 25, 2000 with respect to the above property in Supreme Court and as of that date, all interests in the property became vested in the Village of Port Chester pursuant to that Order. At that time, the Village gave notice of the condemnation order to all recorded owners of the property. The defendant asserts that it had no notice of any right to maintain a telephone on the property, and that none of the former property owners ever notified it with respect to the maintenance of a pay phone at that location. The defendant contends that it removed the phone and disposed of it since there was no information available as to the ownership of the phone.
Once the land at the location of the pay phone was taken by the Village of Port Chester [*2]by eminent domain, it became the responsibility of the Village to notify condemnees of the acquisition by the Village (Eminent Domain Procedure Law (EDPL) §403). The Eminent Domain Procedure Law codifies the constitutional requirement that just compensation be paid to all persons whose property rights are acquired by eminent domain (EDPL §101; Village of Port Chester v Sorto, 14 AD3d 570 (2d Dept 2005)). Condemnees include the owners of fixtures appended to real property taken by eminent domain (Id.).
Although the plaintiff asserts that it had the right to maintain its public pay phone at the above location, the plaintiff has not submitted any evidence of an agreement allowing the maintenance of a public pay phone at that location, either with the Village of Port Chester or any prior landlord. In addition, the plaintiff has not demonstrated that it paid rent or other fees to any entity for the maintenance of the pay phone at that location. The plaintiff has failed to prove that it had any legal right to maintain a pay phone at that location, and therefore, the plaintiff's right to compensation under the Eminent Domain Procedure Law has not been established.
The plaintiff did offer proof, however, that it owned the pay phone. To establish a cause of action in conversion "the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question...to the exclusion of the plaintiff's rights" (Castaldi v 39 Winfield Assoc., 30 AD3d 458 (2d Dept 2006)). In the present case, even if the defendant was not aware of who specifically owned the pay phone, the plaintiff showed proof that it was operational at the time defendant undertook demolition of the property, and thus likely must have belonged to someone.
Even if the pay phone had simply been abandoned, the defendant's seizure of the property would not be legal or permissible under the law. "It is the obligation of a person who holds unclaimed property of another person to have that property declared abandoned, and to pay the property to the comptroller " (Abandoned Property Law §1310; Price v Hoyle, 82 Misc 2d 174 (Co. Ct, Rockland Co. 1975)). It is State policy to utilize unclaimed property for the benefit of all the people of the State (Abandoned Property Law §102).
The plaintiff has submitted proof of the cost of the pay phone, in addition to the affidavit of its president as to lost profits. Based upon the submitted evidence with an appropriate depreciation for age, the Court awards judgment to the plaintiff for the unlawful conversion of its pay phone in the amount of one thousand two hundred and fifty dollars ($1,250.00).
Judgment for Plaintiff in the amount of one thousand two hundred and fifty dollars
($1,250.00).
Dated:June 30, 2008
Mount Vernon, New York
Hon.Adam Seiden
Associate City Judge of Mount Vernon
[*3]
To:
East Harlem Unity Communications, Inc.
Plaintiff
251 East 85th Street
New York, New York 10028
G & S Investors
Defendant
15 North Main Street
Port Chester, New York 10593
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