Hargett v Town of Ticonderoga

[*1] Hargett v Town of Ticonderoga 2008 NY Slip Op 50343(U) [18 Misc 3d 1138(A)] Decided on February 7, 2008 Supreme Court, Essex County Dawson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 7, 2008
Supreme Court, Essex County

Georgia Hargett, Plaintiff,

against

Town of Ticonderoga and Phillip Huestis as the Highway Superintendent of the Town of Ticonderoga, Defendants.



371-07



Darrell W. Harp, Clifton Park, for Plaintiff.

FitzGerald Morris Baker Firth, PC, Glens Falls (John D. Aspland, Jr. of counsel), for Defendants.

James P. Dawson, J.

In 2005 the Defendants undertook to acquire rights in the Plaintiff's land by invoking the powers accorded the Town of Ticonderoga (Town) by Highway Law § 173. After the Town determined that it was in the public interest to acquire the rights, the Plaintiff successfully challenged that determination in a proceeding in the Appellate Division of Supreme Court, Third Department (see Matter of Hargett v Town of Ticonderoga, 35 AD3d 1122 [2006], lv denied 8 NY3d 810 [2007]) when that court annulled the Town's determination. That challenge was pursuant to the procedure set out in EDPL 207 and 208, one which must be commenced in the Appellate Court. No action or proceeding with regard to the acquisition of the Plaintiff's land was ever commenced in this Court.

In 2007, the Plaintiff commenced this action to recover expenses, including attorneys fees, incurred in the process undertaken in 2005 as well as in the procedure in the Appellate Division and to date. This action is premised on EDPL 702. The Defendants have answered and the Plaintiff now moves for summary judgment on the complaint and the Defendants cross-move for summary judgment dismissing the complaint. Neither party contends that there are questions of fact requiring a trial. No other action or proceeding as between these parties is pending.

The parties both rely on EDPL 702 (B) for their sharply differing conclusions. That subsection states: In the event that the procedure to acquire such property is abandoned by the condemnor, or a court of competent jurisdiction determines that the condemnor was [*2]not legally authorized to acquire the property ... the condemnor shall be obligated to reimburse the condemnee.

The Plaintiff contends that the Appellate Division determined that the condemnor was not legally authorized to acquire the property. The Defendants contend that the acquisition had not begun and consequently an award of expenses is inappropriate. That is, until a petition under EDPL 402 (B) is granted allowing the Defendant to file an acquisition map, it cannot be said that any vesting of title has occurred (see EDPL 103 [A]).

The Defendants' cross-motion is granted. The Court is not satisfied that it has subject matter jurisdiction of this action as there was no underlying action in this Court in which to grant an award of expenses. All the Court has is a complaint to recover expenses incurred before any litigation was begun and to recover expenses incurred in the proceeding in the Appellate Division. EDPL 702 is titled "Incidental Expenses" and that section follows a section entitled "Additional Allowance." The additional allowance is only available when the trial court issues an "order or award" (EDPL 701). It would seem that the same should apply to EDPL 702 as well. The expenses must be incidental to something. One definition of incidental refers to items "occurring as a fortuitous or minor concomitant" (The American Heritage Dictionary of the English Language, New College Edition). The Court concludes that incidental expenses are recoverable only as an incident to an order or award. If the expenses here are incidental to any order, it is the one made by the Appellate Division, but such occurred in a proceeding this Court lacks subject matter jurisdiction to consider (see EDPL 207, 208). Since there is nothing for these expenses to be incidental to at least nothing that could properly be brought before this Court there is no cause of action created by EDPL § 702 and no subject matter jurisdiction in this Court.

If the Court did have jurisdiction it would still not grant summary judgment for the Plaintiff. The Appellate Division did state that the Defendant "condemned a portion of the Plaintiff's land for the laying of a new highway" (Hargett, 35 AD3d at 1122) and went on to find that the Defendant Highway Superintendent "exceeded his authority in condemning the Plaintiff's property for purposes not related to his position" (id. at 1124). Having said that, the Defendants argue that the Town never "acquired" anything. If the Defendants' argument is accepted, the Plaintiff properly points out that cautious or unscrupulous "condemnors" (see EDPL 103 [D]) avoid liability for expenses while putting innocent "condemnees" (see EDPL 103 [C]) to considerable expense protecting their property.

The word "condemn" is not defined in the Eminent Domain Procedure Law. One of the definitions of condemn in Black's Law Dictionary is "[t]o determine and declare [property] to be assigned to public use" (Black's Law Dictionary [8th ed 2004], condemn). "Condemnee" is defined in EDPL 103 (C) as "the holder of any right ... in real property subject to an acquisition or proposed acquisition." "Acquisition" is defined in EDPL 103 (A) as "the act of vesting of title ... by virtue of the condemnor's exercise of the power of eminent domain." The Court concludes that the use by the Appellate Division of the term "condemn" is casual and inadvertent and not decisive of the issue at hand.

Unfortunately, the Eminent Domain Procedure Law does not define "procedure to acquire such property" as that term is used in EDPL 702 (B). Surely that term would include proceedings preliminary to acquisition. It cannot be said that the Defendants "abandoned" the procedure as that term has some element of volition. In fact, it is readily apparent that the Defendants did not abandon [*3]as that term is used in Article 4 of the Eminent Domain Procedure Law (see EDPL 406). It is reasonably clear that the language of EDPL provides for recovery of expenses only where the condemnor acquired the property. The use of the past tense in EDPL 702, "was not legally authorized to acquire the property," would seem to be dispositive. Having said that, the Appellate Division, Third Department has on occasion referred to the preliminary proceedings of EDPL Article 2 as an "acquisition" (see Matter of Doyle v Schuylerville Central School Dist., 35 AD3d 1058, 1058 [2006], lv denied 9 NY3d 804 [2007]). Matter of Doyle involved a review pursuant to EDPL 207 and, quoting Matter of Broadway Schenectady Entertainment v County of Schenectady (284 AD2d 672, 672-673 [2001]), referred both to "the acquisition" and "the proposed acquisition." Accordingly, some of the above cases imply that preliminary steps towards acquisition, such as those taken here, are sufficient to trigger the expense provisions of EDPL 702.

Despite that, the only decision expressly dealing with the applicable law is a Second Department case, namely Matter of 49 WB LLC v Village of Haverstraw (44 AD3d 226 [2007]). That case, like this one, was brought pursuant to EDPL 207. The Plaintiff sought expenses pursuant to EDPL 702 (B). The Court found that the recovery of expenses under that statute was available only where the condemnor actually acquired title or was in the process of acquiring title by way of petition and acquisition maps(see id. at 244-246). There is no question that such did not occur here.

The Court finds and decides, if it has the jurisdiction to do so, that the last cited case is binding precedent given the absence of any Third Department case on point (see Mountain View Coach Lines v Storms, 102 AD2d 663, 664-665 [194]).

The motion is denied, the cross-motion is granted, and the complaint is dismissed, and it is So Ordered.

The papers considered are as follows: the notice of motion dated November 14, 2007; affidavit of Darrell W. Harp, Esq., dated November 14, 2007, with exhibit binder "1" and exhibit binder "3"; affirmation of Joshua J. Effron, Esq., dated October 31, 2007; notice of cross-motion dated December 28, 2007 and affirmation of John D. Aspland, Jr., dated December 28, 2007, affirmation of Robert L. Garfinkle, Esq., dated December 27, 2007 and exhibits 1-6; affidavit of Darrell W. Harp, Esq., sworn to December 31, 2007 with invoices.

The original of this Decision and Order, together with the papers supplied, are returned to the Defendants' attorneys for filing and service with notice of entry.

Decided:February 7, 2008

_____________________________________________

James P. Dawson, JSC

Enter: