Matter of City of New York

[*1] Matter of City of New York 2010 NY Slip Op 50722(U) [27 Misc 3d 1213(A)] Decided on April 22, 2010 Supreme Court, Kings County Gerges, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2010
Supreme Court, Kings County

In the Matter of the Application of the City of New York relative to acquiring title in fee simple where not heretofore acquired for the SOUTH BEACH BLUEBELT, PHASE 1



(CY) 4004/08



Corporation Counsel

Matthew Cuttler, ACC

100 Church Street

New York, NY 10007

Goldstein Rikon & Rikon

Philip Sanchez, Esq.

80 Pine Street

New York, NY 10005

Abraham Gerges, J.

Upon the foregoing papers in this eminent domain proceeding, condemnor the City of New York (the City) moves for an order, pursuant to CPLR 2221(d), granting it leave to reargue the motion made by claimant Ramfis Realty, Inc., seeking to compel the City to authorize and to make an advance payment to it, with interest thereon, and upon reargument, vacating the decision of this court dated May 29, 2009 as null and void (Matter of City of New York v South Beach Bluebelt, 2009 NY Slip Op 51066U [2009]) (the Decision). Claimant cross moves for an order, pursuant to Eminent Domain Proceeding Law (EDPL) §§ 303 and 304, compelling the City to make an advance payment equal to 100% of its highest approved appraisal of the property.

[*2]Facts and Procedural Background

This condemnation proceeding was commenced to acquire title to Block 3491, Lots 19, 20, 41 and 81 in Staten Island (the "Property") as part of the South Beach Bluebelt Project. Title to the property vested in the City on May 29, 2008.

Claimant made the underlying motion on September 17, 2008. The parties appeared in court on October 24, 2008, when the matter was adjourned to December 4, 2008. On that date, the court heard oral argument, took the motion on submission and directed the parties to appear for a status conference on March 6, 2009. At that conference, the court asked the City to expedite the advance payment, the City agreed and the matter was adjourned to March 13, 2009. On that date, the City advised the court that it had authorized an advance payment of $995,720. By the Decision dated May 29, 2009, claimant's underlying motion was granted.

The City's Contentions

In support of its motion, the City argues that although it authorized an advance payment on March 13, 2009, claimant's motion was never withdrawn and the Decision was issued. The City therefore concludes that its motion to reargue should be granted because it is clear that the court overlooked the fact that the City had already authorized an advance payment to claimant when it issued the Decision, so that the issue had been rendered moot.

Claimant's Contentions

In opposition to the motion and in support of its cross motion, claimant argues that the City first prepared a City Planning Report for this project as early as 1989 and filed plans with the New York City Planning Commission in November 2004, almost four years prior to the commencement of this condemnation proceeding. Accordingly, the City had ample time to prepare an appraisal. Nonetheless, no advance payment was offered and on September 17, 2009, the underlying motion was filed. On March 26, 2009, the City tendered an "interim advance payment." On May 29, 2009, this court issued the Decision at issue herein, which directed the City "to provide claimant and the court with its appraisal within 30 days of service upon it of a copy of this order with notice of entry, and to make an advance payment of 100% of the value set forth therein within 15 days thereafter" (Decision at 7).

Claimant argues that the "interim advance payment" made by the City does not comply with the requirements of the EDPL 302 and 304 and/or the Decision. This argument is premised upon a letter from the City, dated March 12, 2009, in which the City stated:

"This letter is to acknowledge the Law Department will be authorizing an interim advance payment in the above-referenced proceeding. This interim payment is based on a rough estimate provided to the City by its appraiser, and not on the City's highest approved appraisal of the damage parcels, since the City (like yourself) does not have an appraisal yet.

"This interim advance payment will not necessarily constitute the advance payment for purposes of EDPL § 701. The total advance payment, as determined by the City based [*3]upon its highest approved appraisal as of the date of taking, will be deemed the advance payment for §701 purposes. If the City's final appraisal is larger than the interim advance payment, the City will issue a supplemental advance payment for the difference, and the total advance payment for EDPL § 701 purposes will be the sum of the interim advance payment and the supplemental advance payment. If the City's appraisal value is less than the interim advance payment, the City reserves the right to recover the difference between the interim advance payment and the City's appraisal value pursuant to EDPL § 304(H). "

(emphasis added).

Claimant thus contends that in making an "interim advance payment," the City included reservations that are not permitted by the EDPL or by the Decision. From this it follows that the issue raised in the underlying motion is not moot, so that the Decision should not be declared null and void when the City is not compliance with the law or the direction of this court. Claimant also argues that allowing the City to succeed on its claim and obtain an order declaring the Decision null and void because a payment was made would allow any party who complies with a court order or judgment to so move so that the decision cannot stand as a legal precedent in the future. Claimant further emphasizes that it is the City's habitual refusal to comply with the EDPL and make an advance payment in a timely fashion that necessitated the motion in the first instance.

Claimant also argues that the motion to reargue should be denied on the grounds that the City did not attach copies of the original motion papers [FN1] and that it is time barred pursuant to CPLR 2221(d)(3).

The City's Reply

In reply, the City reiterates the arguments raised in its moving papers. It also contends that there is no merit to claimant's contention that the motion is time barred, since it was never served with a copy of the Decision with notice of entry.

In opposition to claimant's cross motion, the City alleges that it is disingenuous of claimant to seek an order compelling it to make an advance payment, since claimant has already been paid $955,720. The City further asserts that the amount of its highest approved appraisal for the subject property is $849,720, or $149,720 less that the interim advance payment tendered to claimant. It therefore requests an order directing claimant to refund the difference, plus interest.

The Law

CPLR 2221(d)(2) provides that a motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Motions for reargument are addressed to the sound discretion of the court which decided the prior [*4]motion (see e.g. Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 655 [2007], quoting Howell Co. v S.A.F. La Sala, 36 AD3d 653 [2007]; accord Marini v Lombardo, 17 AD3d 545, 546 [2005]). "Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided (Pro Brokerage v Home Ins. Co., 99 AD2d 971) or to present arguments different from those originally asserted (Foley v Roche, 68 AD2d 558)" (Pahl Equip. v Kassis, 182 AD2d 22, 27 [1992]). As is also relevant to the instant dispute, CPLR 2221(d)(3) provides that a motion to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry."

In addressing the issue of mootness, the Court of Appeals has explained that:

"The jurisdiction of this Court extends only to live controversies (see Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608, 72 NY2d 307, 311 [1988]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980]). We are thus prohibited from giving advisory opinions or ruling on academic, hypothetical, moot, or otherwise abstract questions' (Hearst Corp., 50 NY2d at 713)."

(Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003], cert denied 540 US 1017 [2003]). "Discretion to review a case otherwise subject to the mootness doctrine exists only if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question'" (Duane Reade v Local 338 Retail, Wholesale, Dept. Store Union, 11 AD3d 406, 406 [2004], quoting Saratoga County Chamber of Commerce, 100 NY2d at 811).

Discussion

As a threshold issue, the court rejects claimant's assertion that the City's motion is untimely on the ground that it was not made within 30 days of service of a copy of the Decision with notice of entry, as required by CPLR 2221(d)(3). In so holding, the court notes that claimant does not attach a copy of a notice of entry with an affidavit of service and the City alleges that it never received a notice of entry, which assertion is supported by a review of the court file (see generally Garcia v City of New York, ___ AD3d ___, 2010 NY Slip Op 3033, 2 [2010], citing Luming CafE v Birman, 125 AD2d 180 [1986] [a party's time to move to renew or reargue an order pursuant to CPLR 2221 does not begin to run until it is served with notice of entry of the order]).

Turning to the merits, for purposes of disposing of this motion, the court accepts the City's assertion that during the March 13, 2009 conference, it stated that it had approved an advance payment. The court notes, however, that the Decision provided a detailed discussion of the purposes to be accomplished by the EDPL and the procedures to be followed in making an advance payment. More specifically, the Decision noted that "EDPL 303 provides that the condemnor shall establish an amount which it believes to be just compensation for the property and whenever practicable, make an offer of 100% of this amount to the condemnee prior to acquisition" and that "EDPL 304 sets forth the procedures to be followed [*5]in making, accepting and/or rejecting an advance payment" (Decision at 4-5). The application of these provisions, along with the direction to the City in the Decision that it "provide claimant and the court with its appraisal within 30 days of service upon it of a copy of this order with notice of entry, and to make an advance payment of 100% of the value set forth therein within 15 days thereafter" (Decision at 7) inherently contemplated that the City would make an advance payment based upon its appraisal, in compliance with EDPL 303 and 304.

As is brought to the attention of the court on this motion, however, this was not the case. Instead, it is now clear that in authorizing an "interim advance payment," the City based its payment on a "rough estimate" of value, while seeking to reserve the right to issue a supplemental payment or to recoup any overpayment. In so conditioning its payment, the City did not make an advance payment as contemplated by the EDPL or by the Decision, but instead sought to modify the law to accommodate its own agenda. Since the enactment of the EDPL " was intended to standardize the means for the public acquisition of property and for determining just compensation for those whose property is taken'" (Decision at 4, quoting East Thirteenth St. Cmty. Assn. v New York State Urban Dev. Corp., 84 NY2d 287, 293-294, [1994]), the City will not be permitted to modify the procedures to be followed in a condemnation proceeding to further delay the exchange of appraisal reports and hence, the final resolution of the matter. In this regard, it is also noted that as of December 4, 2009, when the parties last appeared in court on this matter, appraisal reports had yet to be exchanged.

Accordingly, having held that the City did not make an advance payment that conforms to the EDPL and the Decision, the court declines to find that the issue raised in claimant's motion has been rendered moot. From this it follows that the City's motion to reargue and to have the Decision declared null and void is denied. In the alternative, the court finds that even assuming, arguendo, that the issue was rendered moot, this case would fall into the exception that allows the court to nonetheless issue a decision. In this regard, the court finds that the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question'" (Duane Reade, 11 AD3d at 406, quoting Saratoga County Chamber of Commerce, 100 NY2d at 811). More specifically, the City's failure to make a timely advance payment is a recurring problem (see e.g. Matter of New York City (Stapelton Branch Library), Kings County Sup Ct, Index No 8822/02, June 30, 2003). Further, the issue typically evades review, as is made clear by the City's action is making the advance payment after the underlying motion was made in an effort to avoid the issuance of a decision. The timing of when an advance payment is tendered is also found to be a substantial issue (see generally Matter of Jacobs v Biamonte, 38 AD3d 777 [2007]).

The court also declines to award claimant any relief at this stage of the proceeding. Although not presented with a copy of the appraisal reports, the City has represented that the advance payment made exceeds its appraised value of the subject property, so that claimant is not entitled to receive any additional funds at this time. The court similarly declines to [*6]award the City any affirmative relief, since its request for the recoupment of an alleged overpayment is not properly raised in a notice of motion or cross motion (see generally CPLR 2214 and 2215; Chun v North American Mtge. Co., 285 AD2d 42 [2001]; Bauer v Facilities Dev., 210 AD2d 992 [1994]; Guggenheim v Guggenheim, 109 AD2d 1012 [1985]; Braver v Nassau County Office of Administrative Servs., 67 Misc 2d 120 [1971]). Moreover, having failed to present the court with a copy of its appraisal, the City's contention that it entitled to a recoupment is not supported by any evidentiary basis.

Conclusion

For the above discussed reasons, all relief requested by City and by claimant is denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The court will not address this issue, since the City attached the motion papers to its reply affirmation.