Town of Carmel v. Blanks

269 A.D.2d 455, 703 N.Y.S.2d 209, 2000 N.Y. App. Div. LEXIS 1380

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 2000
• Status: Published

Opinion

—In a condemnation proceeding, Wayne A. Blanks, a/k/a Wayne A. Ryder, and Dean L. Ryder, individually and as executors of the Estate of Merrit L. Ryder, appeal from an order of the Supreme Court, Putnam County (Palella, J.), dated December 1, 1998, which granted the petition and authorized the petitioner to file acquisition maps causing easements on certain real property to vest in it.

Ordered that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

The petitioner, condemnor in this condemnation proceeding, published notice of the public hearing in three consecutive issues of a weekly newspaper. A condemnor is permitted to publish notice in a weekly newspaper only if there is no daily newspaper within the locality (see, EDPL 202 [A], [B]). The petitioner does not contest the appellants’ assertion that there was a daily newspaper in the locality. Therefore, the petitioner was required to publish notice of the public hearing “in at least five successive issues” of the daily newspaper in the locality (EDPL 202 [A]). The failure to adhere to the publication requirements of EDPL 202 (A) renders the proceeding jurisdictionally defective and warrants dismissal of the proceeding (see, Matter of New Life Fellowship v City of Cortland, 175 AD2d 343).

Additionally, the petition was made returnable only 12 days after the petition was filed. EDPL 402 (B) (2) requires that the petition be made returnable 20 days after the filing of the petition. Therefore, the petitioner failed to satisfy the notice requirement under EDPL 402 (B) (2), which also requires dismissal of the petition.

The appellants’ remaining contentions are without merit. O’Brien, J. P., Krausman, Florio and McGinity, JJ., concur.