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EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: A CLAIM FOR DAMAGES FOR THE ACQUISITION OF REAL PROPERTY BY THE VILLAGE PROPERLY GRANTED, CRITERIA EXPLAINED.

The Second Department affirmed Supreme Court’s grant of an extension of time to file a notice of appearance pursuant to Eminent Domain Procedure Law (EDPL) 503 (B). The village’s petition for condemnation had been granted and the EDPL requires a landowner to file a notice of appearance for any claim of damages arise from the acquisition of real property. The landowners’ attorney failed to timely file the notice of appearance with the clerk of the court, but the village had been served with it. The Second Department explained the relevant law:

 

The time within which to file a written claim or notice of appearance pursuant to EDPL 503 is “merely a procedural direction to be issued by the court in the exercise of its broad discretion to administer the litigation in an orderly and expeditious manner” … . It is neither a statute of limitations nor a condition precedent to compensation and may be extended by the Supreme Court ” upon such terms as may be just and upon good cause shown'” … . In considering a motion for such an extension of time, “[a] court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit” … .

Here, the landowners established ” good cause'” for an extension of time to file a notice of appearance … . Although the landowners’ attorney failed to properly file a notice of appearance with the clerk of the court within the timeframe set forth by the Supreme Court, the Village was nevertheless served with a notice of appearance that alerted it to the landowners’ claims. Moreover, the landowners repeatedly demanded an “advance payment” for the taking (EDPL 304), repeatedly requested that their expert appraisers be given access to the subject property in order to assess its value, and sought to exchange “written appraisal reports” (EDPL 508). In addition, after the Village had acquired the subject property, a judicial viewing of the property took place (see EDPL 510). Furthermore, the landowners demonstrated that their claim was potentially meritorious through the submission of expert evidence demonstrating that the property was worth significantly more than the amount tendered by the Village as an advance payment. Matter of Village of Haverstraw v Ray Riv. Co., Inc., 2016 NY Slip Op 01500, 2nd Dept 3-2-16

 

EMINENT DOMAIN (EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: DAMAGES FOR ACQUISITION OF REAL PROPERTY PROPERLY GRANTED)/NOTICE OF APPEARANCE (EMINENT DOMAIN, EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: DAMAGES FOR ACQUISITION OF REAL PROPERTY PROPERLY GRANTED)/MUNICIPAL LAW (EMINENT DOMAIN, EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: DAMAGES FOR ACQUISITION OF REAL PROPERTY PROPERLY GRANTED)

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