Opinion
69906.
Decided October 5, 2005.
Scott D. Cannon, Esq., Geneseo, New York, for the Plaintiff.
Timothy Ball, Esq., Assistant Corporation Counsel, Buffalo, New York, for the Defendant City of Buffalo.
Audrey V. Bullen, Esq., Assistant Attorney General, State Counsel Division Real Property Bureau, The Capitol Albany, New York, for Defendants Empire State Development Corp., Dormitory Authority of the State of New York, and Town of Perrysburg, New York.
By deed dated August 1, 1952, New York State acquired from the City of Buffalo a 675 acre parcel of property located in the Town of Perrysburg. Located on the property was J.N. Adam Memorial Hospital, which was then being operated as a tuberculosis hospital. The deed contained a reverter clause that transferred the property back to Buffalo if J.N. Adam stopped being used as a tuberculosis hospital.
On June 22, 1960, another deed was executed between the State and Buffalo that reflected that J.N. Adam would cease being a tuberculosis hospital on June 30, 1960 but would continue to be operated "for the care and treatment of mentally retarded patients". This deed also contained a reverter clause providing that if the Commissioner of Mental Hygiene decided that it was no longer "economical or advisable" to continue operating the facility to care for mentally retarded patients, then "upon the discontinuance of such hospital", the property would revert to Buffalo. That clause is at the heart of this lawsuit.
In 1990 the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) announced a "Community Initiative" for J.N. Adam. This initiative essentially meant moving people from the institution to "group homes" in the area and ultimately closing the main hospital. Several of the group homes are located on the same parcel upon which J.N. Adam is located.
Faced with the loss of the hospital, the Town of Perrysburg began to look for ways to utilize or develop the property. Through a convoluted process involving the Empire State Development Corporation (ESDC) and the Dormitory Authority of the State of New York (DASNY), the property was sold to Trathen Land Company on November 10, 2003. Trathen, ESDC, DASNY and the Town of Perrysburg all claim to have asked or pleaded with Buffalo to release the reverter clause to allow the sale to proceed but Buffalo refused. Therefore, Trathen commenced this action to quiet title and has now moved for summary judgment on both causes of action asserted in the complaint.
The Attorney General, representing Perrysburg and the State defendants, contends that the deed created a right of reacquisition for the City. While a right of reacquisition and a possibility of a reverter are two different things ( compare EPTL 6-4.4 to 6-4.5), and the difference them is not always clear, the court views the deed as one creating a possibility of reverter ( see Nichols v. Haehn, 8 AD2d 405, 187 NY2d 773 [4th Dept. 1959]; Board of Education of Central School Dist. 1 v. Miles, 15 NY2d 364, 259 NYS2d 129; DeKay v. Board of Education of Central School Dist. No. 2, 20 Misc2d 881, 189 NYS2d 105 [S. Ct. Steuben Co. 1959]: Gordon v. Wager, 149 NYS2d 887 [S. Ct. Ulster Co. 1958]).
Plaintiff claims that the property stopped being used to operate the J.N. Adam Hospital in April 1993. Therefore, because Buffalo did not attempt to recover possession of the property within 10 years of April 1993, Real Property Action and Proceedings Law § 612 cuts off any interest Buffalo may have had in the property. Buffalo opposes the motion on two grounds:
(1) it is premature because no discovery has taken place, and (2) the property continues to be used for the care and treatment of mentally handicapped persons. Buffalo also contends that the motion is not properly before this court but that contention can be summarily rejected.
Nonetheless, Buffalo's contention that the property continues to be used to care for mentally retarded persons is sufficient to defeat the instant motion for two reasons. First, Buffalo established that five of the original buildings on the J.N. Adam campus continued to be used until 2004, when the new administration building was opened. While the five buildings did not house patients, they were used for various administrators, family care coordinators, business personnel and other staff. All of the people who used these five buildings were involved in "the care and treatment of mentally retarded patients." So long as some or several campus buildings continued to be used for their original purpose, a "discontinuance of such hospital" cannot be found. Thus, the ten year period did not begin until 2004, if it began at all.
More importantly, however, this court cannot conclude that the hospital has been discontinued. Granted, the original (old and decaying) buildings are no longer being used, but the same patients are being cared for in group homes on the same property. The group homes consist of six small residential units (SRUs) and two intermediate care units (ICUs). These facilities were built in the 1980's and 1990's as patients were being moved from the original campus to group homes. Thus, structures on the property continue to this day to be used for "the care and treatment of mentally retarded patients" ( see O'Brien v. New York, NH HR Co., 189 AD2d 703, 179 NYS 160 [1st Dept. 1919]; Kouwenhoven v. NY Rapid Transit Corp., 256 AD 253, 9 NYS2d 629 [2nd Dept. 1939]; affirmed 281 NY 811, 24 NE2d 485); City of Buffalo v. Day, 8 Misc2d 14, 162 NYS2d 817 [S.Ct. Erie Co. 1957]). Accepting plaintiff's contention would mean that plaintiff could simply enter the property and bulldoze the SRUs and ICUs.
Accordingly, plaintiff's motion for summary judgment is denied. Counsel for Buffalo should submit an order on notice.