COMMISSIONER OF TRANSPORTATION, as Agent of the People of the State of New York, Petitioner,
SUNNY LUMBER SUPPLY NY, INC., Respondent.
[967 N.Y.S.2d 613]
Eric T. Scheneiderman, Attorney General of the State of New York, Hauppauge, for Petitioner.
Sancyhez & Polovetsky, New York, for Respondent.
REGINALD A. BODDIE, J.
After oral argument, and on the foregoing cited papers, respondent's motion is decided as follows:
Petitioner, State of New York, commenced this proceeding by filing a holdover notice of petition and petition seeking possession of the property located at 26 Cherry Street, Brooklyn, N.Y., as condemnor to evict the present occupant-respondent, Sunny Lumber Supply NY, Inc., described herein as condemnee-occupant, on the ground that petitioner is the rightful owner of the property under the Eminent Domain Law, having acquired such under Section 30 of the Highway Law and Section 402 of the Eminent Domain Procedure Law (EDPL). The instant taking is for a public project known and referred to as the Kosciuszko Bridge Project.
After answering, respondent moved for " summary judgement dismissal of the petition," citing CPLR 3211(a)(2)(3)(4)(7) and (8). Specifically, respondent alleged, inter alia, that the Civil Court has no jurisdiction over such condemnation matters, the State has no authority to sue, the pleading fails to state a cause of action, there is a related proceeding pending in the Court of Claims for monetary relief, and the court lacks jurisdiction over the respondent.
[967 N.Y.S.2d 614] Petitioner opposed the motion on the ground that it is the owner of the property, the proceeding for eviction was properly commenced in Civil Court, just compensation in the amount of $2,507,999.29 was paid to respondent or posted on its behalf, as required by statute, and that, in any event, the respondent filed a release on petitioner's behalf regarding compensation.
As an initial matter, CPLR 3212(b) requires that, " A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as deposition and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts, and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit ..." Here, respondent failed to annex the pleadings to its motion, as well as an affidavit from a person with personal knowledge. Therefore, the papers are defective, and the court declines to treat this motion as one for summary judgment (CPLR 3211[c] ).
Further, to sustain a lack of personal jurisdiction defense on the ground that service was not proper, it is well established that to warrant a hearing the allegations should be made in a sworn statement by the respondent, not its attorney, as here ( Frankel v. Schilling, 149 A.D.2d 657, 540 N.Y.S.2d 469 [2d Dept. 1989]; Skyline Agency v. Ambrose Coppotelli, Inc., 117 A.D.2d 135, 502 N.Y.S.2d 479 [2d Dept. 1986] ). The court also notes that even if the papers were proper in form, previous courts have held that " the failure in the affidavit of service to allege the true facts of ... nonparty status [as asserted here] will not invalidate otherwise proper service of process" ( Wellington Assoc. v. Vandee Enterprises Corp., 75 Misc.2d 330, 347 N.Y.S.2d 788 [Civ. Ct., New York County 1973]; see also Feierstein v. Mullan, 120 Misc.2d 574, 467 N.Y.S.2d 478 [App. Term, 1st Dept. 1983] ). Accordingly, no hearing is warranted, and the motion to dismiss on the ground of improper service is denied.
Regarding respondent's motion to dismiss for lack of subject matter jurisdiction, petitioner here correctly notes that EDPL 405(A) permits a condemnor to cause possession to be delivered to it under the landlord/tenant law separate and apart from any underlying proceedings in the Court of Claims for additional compensation. Specifically, EDPL 405(A) provides:
" If the condemnor has a right to possession of real property as provided in this law, and the condemnor
shall deem it necessary to cause the removal of the condemnee or other occupant it may cause such condemnee or other occupant to be removed therefrom and possession to be delivered to it, pursuant to the procedures of the landlord and tenant law, or by application to the supreme court in which the proceeding is pending for a writ of assistance or pursuant to other law, except that no condemnee shall be required to surrender possession prior to the condemnor's payment to him of its advance payment or the deposit of such amount in ...