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In re City of New York

Other Lower Courts

January 7, 2008

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 Jones Woods

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Abraham G. Gerges, J.

Upon the foregoing papers in this eminent domain proceeding, claimant Belair Ridge Development Corp. moves, pursuant to Eminent Domain Proceeding Law (EDPL) 304(A)(1), for an award of additional interest in the amount of $385,574.79 on the advance payment made to it by the condemnor, the City of New York (the City).

Facts and Procedural Background

The City acquired title to the subject property on June 16, 2005. On September 13, 2005, the Office of the Comptroller mailed a Notice of Condemnation Advance Payment or Award (the Notice) to claimant, addressed to 2071 Forest Avenue, Staten Island, New York. The Notice advised claimant of the availability of $9,420,000 in principal and $268,471.23 in interest, which represented interest for 95 days, and instructed claimant to contact the New York City Law Department to clear title objections. The Notice was returned to the Office of the Comptroller on or about September 18, 2005, bearing the notation "RETURN TO SENDER. NO SUCH NUMBER. UNABLE TO FORWARD."

Subsequently, a second copy of the Notice was mailed to claimant at P.O. Box 120138, S.I., NY 10312; the mailing was postmarked January 5, 2006. Along with the Notice, claimant received a note stating that "Joe Bavusa of the Law Department told me to Xerox the envelope used to send the enclosed notice of award. As you can see it was returned due to invalid address. I'm sending this to the Post Office box listed in the proceeding at Joe Bavusa' request."

In response to the court's request during oral argument on July 27, 2007, the City submitted a printout from its Fairtax system, which listed claimant's address for billing for tax purposes as Boys Bill, PO Box 120138, Staten Island, NY 10312-0138.

The Parties' Contentions

In support of its motion, claimant argues that it is entitled to receive interest on the advance payment from the date of the taking through August 25, 2006, the date that the payment was received, and not through December 16, 2005, as calculated by City in the Notice, because the delay in receiving payment was caused by the City. More particularly, claimant did not receive the September 13, 2005 Notice until January 6, 2006. Thereafter, claimant was advised to contact Janet Miller, who was allegedly no longer with the Law Department. When several attempts to contact Miller failed, claimant was advised to contact Assistant Corporation Counsel Michael J. Wasser, Esq.; several messages were left with him over a period of one month, without any success in reaching him. After being retained on March 22, 2006, claimant's current counsel, Richard A. Steinberg, Esq., telephoned Wasser, who referred him to Assistant Corporation Counsel Joseph Bavuso, Esq. Steinberg telephoned Bavuso on April 25, 2006 and left a message; the phone call was not returned until May 8, 2000.

On May 17, 2006, Steinberg received an email from Wasser setting forth the title objections and forwarding the City's form of proof of title. On June 22, 2006, Steinberg transmitted the affidavit of title and other documents to Wasser for his review. On July 5, 2006, claimant sent further documents to Wasser and inquired if he had reviewed the first submission, since no response had been received. On July 18, 2006, additional documents were delivered. Having received no response, Steinberg again transmitted original documents to Wasser on August 1, 2006, by hand delivery; on August 2, 2006, an email was sent following up on the delivery. Copies of the later two transmittal letters are annexed to claimant's moving papers.

On August 17, 2006, Wasser notified claimant that checks for the advance payment had been issued and instructed claimant to contact the Comptroller's Office to arrange delivery. On August 22, 2006, however, claimant's counsel was advised that the checks were not ready and there was an issue as to the availability of the funds. Payment was not received until August 25, 2006.

In opposition, the City argues that the funds for the advance payment were made available on September 9, 2005. The City further avers that the September 13, 2005 Notice was mailed to claimant at the address that the notice of petition listed for it, i.e., the address on the deed for the property. The City also alleges that Phillip Sanchez, Esq., contacted Bavusa sometime in December 2005 to inquire about the status of the advance payment. When Sanchez advised him that claimant had not received the Notice, Bavusa directed the Comptroller's Office to send another copy.

Thereafter, sometime in May 2006, Steinberg contacted Wasser, requesting assistance in clearing objections to title on behalf of claimant. On May 17, 2006, Wasser emailed Steinberg a copy of the Certification of Advance Payment on Award of Damages and the required affidavit of title. The objections to title included an $800,000 purchase money mortgage; possible unpaid real estate taxes, water and sewer charges; several Environmental Control Board judgments totalling over $10,000; and proof of both City and State corporation taxes. By letter dated August 1, 2006, claimant's counsel sent the City a package containing documentation intended to induce the City to omit most of the objections. The package also contained a request and supporting documentation ...

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