Matter of New York State Urban Dev. Corp.

[*1] Matter of New York State Urban Dev. Corp. 2008 NY Slip Op 52318(U) [21 Misc 3d 1132(A)] Decided on November 12, 2008 Supreme Court, New York County Solomon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2008
Supreme Court, New York County

In the Matter of the Application of New York State Urban Development Corporation d/b/a EMPIRE STATE DEVELOPMENT CORPORATION, Petitioner, To Acquire By Exercise of its Powers of Eminent Domain Title in Fee Simple to Certain Real Property for use in a Land Use Improvement Project Known as THE 42ND STREET DEVELOPMENT PROJECT, SITE 8 SOUTH.



401095/03



Petitioner was represented by John Casolaro, Esq. and Susan Kalib. Esq., of Carter Ledyard & Milburn, LLP, 2 Wall Street, New York, NY 10005, tel. no. (212) 238-8736. Claimants were represented by Michael Rikon, Esq., of Goldstein, Goldstein Rikon & Gottlieb, P.C., 80 Pine Street, New York, NY 10005, tel. no. (212) 422-4000.

Jane S. Solomon, J.

The captioned Claimant-condemnee moves for an order directing payment by Condemnor Empire State Development Corporation (hereafter "ESDC") of additional interest on the advance payment under sections 303 and 304 of the Eminent Domain Procedure Law ("EDPL"). Title vested in the ESDC on August 19, 2002; the amount of the advance payment was $12.7 million, and was tendered on June 12, 2003. Claimant contends the money should have been made available on June 5, 2003, so that an additional $21,920.57 is due.

Upon acceptance of the offer as an advance payment, the condemnor's obligation to pay interest on the principal sum is governed by EDPL section 304( C ):

In the event a condemnee shall reject the offer or the offer shall be deemed rejected . . . or [*2]a condemnee unreasonably fails to provide the condemnor with all papers reasonably necessary to effect a valid transfer of title as acquired, within 90 days of receipt, the condemnor's obligation to pay interest on the amount of the offer shall be suspended until such time as the condemnee . . .provides the necessary title papers[.]

(Emphasis added.)

As relevant here, the parties agree that the triggering offer is a letter from the ESDC, dated March 7, 2003 which states that it was sent by hand. Receipt on that date is not disputed, so the statutory 90 days ended on June 5, 2003.

By letter dated June 4, 2003, claimant purported to deliver the papers sought in the March 7 letter as necessary for the transfer of title as acquired. The ESDC considered the delivery rushed and incomplete and set forth the inadequacies in ensuing correspondence. It appears the infirmities were cured quickly because the advance payment was made on June 12, 2003, in the principal amount of $12.7 million plus interest from the date title vested, August 19, 2002, through June 5, 2003. At the time, the ESDC responded to the claimants demand for the continued running of interest by relying on the suspension triggered by the incomplete delivery made on the 89th day. The matter then lay dormant for over 5 years, until the instant motion made upon the heels of the final award and judgment thereon for an additional $6.78 million.

The motion is denied. Claimant has failed to refute the opposing submission of the ESDC that payment of interest properly was suspended on June 5 because of claimant's unreasonable failure to provide, within 90 days of receipt of the March 7, 2003 offer, the statutorily required "all papers reasonably necessary to effect a valid transfer of title as acquired." Claimant's reliance on the allegedly tardy "breakdown" is camouflage for its own tardy submission.

This constitutes the decision and order of the court.

Dated:_______________

J.S.C.