Metropolitan Transportation Authority v. Pizzuti

Appellate Division of the Supreme Court of New York

Metropolitan Transportation Authority v. Pizzuti

156 A.D.2d 546, 549 N.Y.S.2d 52, 1989 N.Y. App. Div. LEXIS 15865

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 18, 1989

StatusPublished

Cited by5 cases

This text of 156 A.D.2d 546 (Metropolitan Transportation Authority v. Pizzuti) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Metropolitan Transportation Authority v. Pizzuti, 156 A.D.2d 546, 549 N.Y.S.2d 52, 1989 N.Y. App. Div. LEXIS 15865 (N.Y. Ct. App. 1989).

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Opinion

In a condemnation proceeding pursuant to EDPL article 5, the petitioner-condemnor appeals (1) from an order of the Supreme Court, Nassau County (McGinity, J.), dated March 8, 1988, which granted the respondent-condemnee’s motion for leave to file a late notice of claim for additional compensation, and (2) as limited by its brief, from so much of an order of the same court, dated July 20, 1989, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated March 8, 1988, is dismissed, without costs or disbursements, as that order was superseded by the order dated July 20, 1989, made upon reargument; and it is further,

Ordered that the order dated July 20, 1989, is reversed insofar as appealed from, as a matter of discretion, without costs or disbursements, the order dated March 8, 1988, is vacated, and the motion for leave to file a late notice of claim is denied.

As the Supreme Court correctly noted, the letter sent by the condemnee’s attorney to the condemnor on or about June 18, 1986, was insufficient to constitute a notice of appearance as provided for in EDPL 504. Additionally, there is no indication in the record that this letter was timely filed with the clerk of the court (see, EDPL 503 [B]). Thus, the leave of the court was required in order for the condemnee to assert his untimely claim for additional compensation (see, EDPL 503 [B]). While the Supreme Court possessed the discretion to grant such an application (see, Grandinetti v Metropolitan Transp. Auth., 74 NY2d 785), based upon the record before us, we conclude that the court improvidently exercised that discretion. The condemnee furnished neither an affidavit of merit nor a reasonable excuse for his more than one-year delay in filing his notice of claim (see, Grandinetti v Metropolitan Transp. Auth., 139 AD2d 619, affd 74 NY2d 785, supra). Brown, J. P., Kunzeman, Sullivan and Balletta, JJ., concur.

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In a condemnation proceeding pursuant to EDPL article 5, the petitioner-condemnor appeals (1) from an order of the Supreme Court, Nassau County (McGinity, J.), dated March 8, 1988, which granted the respondent-condemnee’s motion for leave to file a late notice of claim for additional compensation, and (2) as limited by its brief, from so much of an order of the same court, dated July 20, 1989, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated March 8, 1988, is dismissed, without costs or disbursements, as that order was superseded by the order dated July 20, 1989, made upon reargument; and it is further,

Ordered that the order dated July 20, 1989, is reversed insofar as appealed from, as a matter of discretion, without costs or disbursements, the order dated March 8, 1988, is vacated, and the motion for leave to file a late notice of claim is denied.

As the Supreme Court correctly noted, the letter sent by the condemnee’s attorney to the condemnor on or about June 18, 1986, was insufficient to constitute a notice of appearance as provided for in EDPL 504. Additionally, there is no indication in the record that this letter was timely filed with the clerk of the court (see, EDPL 503 [B]). Thus, the leave of the court was required in order for the condemnee to assert his untimely claim for additional compensation (see, EDPL 503 [B]). While the Supreme Court possessed the discretion to grant such an application (see, Grandinetti v Metropolitan Transp. Auth., 74 NY2d 785), based upon the record before us, we conclude that the court improvidently exercised that discretion. The condemnee furnished neither an affidavit of merit nor a reasonable excuse for his more than one-year delay in filing his notice of claim (see, Grandinetti v Metropolitan Transp. Auth., 139 AD2d 619, affd 74 NY2d 785, supra). Brown, J. P., Kunzeman, Sullivan and Balletta, JJ., concur.

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156 A.D.2d 546, 549 N.Y.S.2d 52, 1989 N.Y. App. Div. LEXIS 15865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-transportation-authority-v-pizzuti-nyappdiv-1989.

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