3.4 C. Article 5

• Jurisdiction: New York

C. ARTICLE 5

The heart of the dichotomy continues in article 5, where state takings require claims be filed in the Court of Claims (EDPL section 501(A)) and non-state cases heard in Supreme Court (EDPL section 501(B)). In state takings, section 502(A) provides that the Notice of Acquisition must be served upon the claimant personally or by certified mail. Such service suspends interest six months after service unless a claim is filed or if the advance payment offer has been made.

The claimant then has three years in which to institute a proceeding in the Court of Claims by filing a claim pursuant to EDPL section 503(A), or the amount of the state’s offer shall become paid in full satisfaction. Section 503(B) provides only for the claimant to appear or file a written claim but does not treat anything as satisfied or unsuspended. The control of the case is left to the trial judge.

In the pre-EDPL practice, those claimants who were listed in the condemnor’s original application to condemn who did not file appearances as things progressed were simply notified by the court or by the condemnor at the court’s discretion that the entire proceeding was scheduled for a particular day. If nothing was heard from a particular claimant after a point in time, the court would direct the condemnor to notice the case for an inquest so that the amount of the condemnor’s proof would be awarded to the claimant if the claimant did not appear. That is particularly useful when the proceeding involves a road widening or an urban-renewal proceeding in which the single proceeding can involve hundreds of property owners, tenants, fixture claimants or others who would not receive any specific notice of acquisition.

The effect of the notice and claim procedures were such that the claimant’s right to file a claim in the Court of Claims in a state taking could not be eliminated until personal service, or its equivalent, of the Notice of Acquisition was served upon the claimant, and the claimant then permitted three years to go by without bringing a plenary suit in the Court of Claims.

Generally, in non-state takings the condemnor is not required to serve a Notice of Acquisition personally. Before the EDPL, personal notice, or its equivalent, was not required until such time as the court was prepared to enter a default judgment against a non-appearing claimant.

Essentially, the date fixed by the court in non-state takings (section 503(B)) was simply intended to be a reasonable control date—the time beyond which the condemnor could move the court for an application to take an inquest against the claimant. Such was the practice in most Supreme Court jurisdictions under the pre-EDPL statutes. That may not be the case now.

A claimant is constitutionally entitled to due process notice that he or she has a right to “just compensation.”¹²³ Much of the EDPL notices relate to notice about the proposed taking itself. That non-jurisdictional process is not constitutionally required...