Opinion
# 2014-010-033 Claim No. NONE
04-30-2014
MAZUR BROTHERS REALTY, LLC v. STATE OF NEW YORK
GOLDSTEIN, RIKON, RIKON & HOUGHTON, P.C. By: Michael Rikon, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General
Synopsis
petitioner's special proceeding seeking an order of distribution dismissed, petition post dates the verification.
Case information
| UID: | 2014-010-033 |
| Claimant(s): | MAZUR BROTHERS REALTY, LLC |
| Claimant short name: | MAZUR BROTHERS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has, sua sponte, amended the caption to reflect the only proper party respondent. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | SP-166 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | GOLDSTEIN, RIKON, RIKON & HOUGHTON, P.C. By: Michael Rikon, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 30, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-4 were read and considered by the Court on petitioner's special proceeding seeking an order of distribution:
Order to Show Cause, Verified Petition and Exhibits..............................................1
Letter Dated March 13, 2014 from the State's Counsel...........................................2
Letter Dated March 17, 2014 from Petitioner's Counsel..........................................3
Verified Answer and Exhibit.....................................................................................4
By Decision and Order of this Court filed stamped January 17, 2014 (Mazur Bros. v State of New York, UID No. 2013-010-059 [Ct Cl, Ruderman, J., Nov. 13, 2013]; Petitioner's Ex. K), this Court found that petitioner's special proceeding was not properly commenced because the petition was not appropriately verified; therefore the proceeding was dismissed.
In March of 2014, petitioner served the State with the petition presently before the Court. The State rejected the petition on March 13, 2014 due to an improper verification (State's Letter dated Mar. 13, 2014). Specifically, the State noted that, inter alia, the petition was dated February 10, 2014 and the verification pre-dated the referenced petition. By letter of petitioner's counsel dated March 17, 2014, petitioner respectfully disagreed with the State's position that the petition should be considered a nullity.
Upon review of the papers submitted by the parties, the Court finds that the State correctly points out that the verification dated January 31, 2014 purports to verify the "foregoing" petition which post-dates the verification. Thus, on its face, the January verification cannot verify a subsequent petition dated February 10, 2014. As was noted in this Court's Decision and Order filed stamped January 17, 2014, Eminent Domain Procedure Law (EDPL) § 304 (E) (1) and Court of Claims Act § 23 require that a special proceeding "shall be made" by "verified petition." Additionally, the Order to Show Cause explicitly stated that the petition shall be verified (Petitioner's Ex. K). Counsel's failure to meet the statutory mandates of the EDPL and the Court of Claims Act require dismissal of the petition because the statutory requirements are jurisdictional. Thus, the Court finds that the proceeding was not properly commenced and service upon the State was a nullity (see Long v State of New York, 7 NY3d 269, 276 [2006] [failure to comply with statutory provision that required claim to be verified by claimant mandated dismissal of claim]; Lichtenstein v State of New York, 93 NY2d 911, 913 [1999] [statutory requirements conditioning suit against the State must be strictly construed and one who fails to meet statutory requirements has not properly commenced an action against the State]). Accordingly, the special proceeding is dismissed and the merits cannot be considered by the Court.
April 30, 2014
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims