Legal Document: City Of Binghamton, New York v. Not Applicable. Map 9

On October 12, 2023 a AFFIRMATION/AFFIDAVIT OF SERVICE - Aff.of Service.Not.of Entry was filed involving a dispute between City Of Binghamton, New York, and Not Applicable. Map 9, for Real Property - Condemnation in the District Court of Broome County.

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Db 00M OUN NK 04 04 40 DM INDEX NO. EFCA2023002255
NYSCEF BOC. NO. 37 RECEIVED NYSCEF: 01/04/2024

STATE OF NEW YORK
SUPREME COURT COUNTY OF BROOME
eae
In the Matter of the Application of AFFIDAVIT OF
SERVICE
CITY OF BINGHAMTON, NEW YORK,

Petitioner,

For an Order Pursuant to Article 4 of the Eminent
Domain Procedure Law to Obtain Authorization to Index No.
File an Acquisition Map to Acquire Real Property EFCA2023002255
Interests in Certain Real Property Located in the
City of Binghamton, County of Broome, State of New
York, commonly known as 10 Main Street and Assigned Judge:
bearing Tax Map Identification No. 160.40-1-27, to Hon. Oliver N.
be used in connection with the Main Street Corridor Blaise Ill, J.S.C.
Study and Safety Improvements Project
(PIN 9754.37) (Map 9)
eee
STATE OF NEW YORK) ss:
COUNTY OF ALBANY )

NIKKO A. MURRAY, being duly sworn, deposes and says that: she is over
the age of 18 years; she is not a party to the above-entitled proceeding; on the
4" day of January, 2024, she served the attached Notice of Entry, dated January
3, 2024, upon 4 Main Street LLC by personally delivering a true and correct copy
of same to Nancy Dougherty, Business Document Specialist 2 with the New York
State Department of State, at the New York State Department of State, Division
of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, New
York.
Your deponent also deposited a true and correct copy of such Notice in a
postage-paid, Certified Mail, Return Receipt wrapper, addressed to 4 Main Street
LLC at 279 Front Street, Binghamton, NY 13905, in the depository maintained and
exclusively controlled by the United States Postal Service at 20 Corporate Woods
Boulevard, Albany, New York, that being the address within the State designated
for that purpose in the records of the New York State Department of State, as well
as the address designated for the purpose of mailing real property tax bills.

ub
NIKKO A. MURRAY
Chg
Sworn to before me this
4" day of January, 2024.

NOTARY PUBLIC

Adrien t
Notery Put Oty,
lo 18
Qualified in Albany Co
My Commission Expires April 28, 20 2\
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Db OOF OUN PK 04 04 40 DM INDEX NO. EFCA2023002255
NYSCEF BOC. NO. 37 RECEIVED NYSCEF: 01/04/2024

STATE OF NEW YORK
SUPREME COURT COUNTY OF BROOME
wee ne ene enn ene eee nnn ne nnn nenenen nn nen nn nenemennenenenes NOTICE OF
In the Matter of the Application of ENTRY

CITY OF BINGHAMTON, NEW YORK,

Petitioner,

For an Order Pursuant to Article 4 of the Eminent Index No.
Domain Procedure Law to Obtain Authorization to EFCA2023002255
File an Acquisition Map to Acquire Real Property
Interests in Certain Real Property Situated in the
City of Binghamton, County of Broome, State of New
York, commonly known as 10 Main Street and Assigned Judge
bearing Tax Map Identification No. 160.40-1-27, to Hon. Oliver N.
be used in connection with the Main Street Corridor Blaise, Ill, J.S.C.
Study and Safety Improvements Project
(PIN 9754.37) (Map 9)
meena ene neem nen ene enn nn nen en enn nen nn nenemennenenenes

NOTICE IS HEREBY GIVEN, pursuant to relevant provisions of the

Eminent Domain Procedure Law and the Civil Practice Law and Rules, that on

December 7, 2023, a Decision and Order of the Supreme Court of the State of

New York, dated December 7, 2023, was entered in the above-captioned

proceeding in the Office of the Broome County Clerk. A copy of such Decision

and Order is annexed hereto as Exhibit “A”.

DATED: January 3, 2024 Yours, etc.
Albany, New York CITY OF BINGHAMTON, NEW YORK

Hite & Beaumont, P.C., Special Attorneys

Office and P.O. Address
20 Corporate Woods Boulevard
Albany, New York 12211
(518) 689-0966

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iD: AR OOF OUN PK 04 04:40 DM INDEX NO. EFCA2023002255
NYSCEF BOC. NO. 37 RECEIVED NYSCEF: 01/04/2024

TO: 4 Main Street LLC
279 Front Street
Binghamton, NY 13905

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EXHIBIT “A”

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INDEX NO. EFCA2023002255
(FILED: BROOME COUNTY CLERK &2/70%/2023 02:40 PM
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/04/2023

At a Motion Term of the Supreme Court of
the State of New York held for the County
of Broome in Binghamton, New York on the
13th day of November, 2023.

PRESENT: HON. OLIVER N. BLAISE, III
Justice Presiding.

STATE or NEW YORK
SUPREME COURT : : BROOME COUNTY

In the Matter of the Application of

CITY OF BINGHAMTON, NEW YORK,
DECISION & ORDER

Petitioner,
Index No. EFCA2023002255
Vv RJI Year 2023

For an Order Pursuant to Article 4 of the Eminent
Domain Procedure Law to Obtain Authorization
to File an Acquisition Map to Acquire Real
Property Interests in Certain Real Property
Situated in the City of Binghamton, County of
Broome, State of New York, commonly known
as 10 Main Street and bearing Tax Map
Identification No. 160.40-1-27, to be used in
connection with the Main Street.Corridor Study
and Safety Improvements Project
(PIN 9754.37) (Map 9)

APPEARANCES:

COUNSEL FOR PETITIONER: HITE & BEAUMONT, P.C.
BY: ROBERTS. HITE, ESQ.
20 CORPORATE WOODS BOULEVARD
ALBANY, NY 12211

4 MAIN STREET LLC: LIAM P. BURNS
90 RIVERSIDE DRIVE
BINGHAMTON, NY 13905

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INDEX NO. EFCA2023002255
(FILED: BROOME COUNTY CLERK &2/0%/2023 02:40 PM
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: @2/04/2023

HON. OLIVER N. BLAISE, III, J.S.C.

In this condemnation proceeding, petitioner the City of Binghamton, New York seeks an

order pursuant to section 402 of the Eminent Domain Procedure Law ("EDPL") vesting title to a

portion of the property known as 10 Main Street (bearing Tax Map Identification Number

160.40-1-27) owned by the condemnee, 4 Main Street, LLC. The condemnee, 4 Main Street,

LLC, opposes the taking and also filed'a cross-motion seeking dismissal of said petition.'

All matters were returnable on November 13, 2023 on submission.

The proposed taking is part of a project known as the "Main Street Corridor Study and

Safety Improvements Project" (hereinafter "the Project"). The entire Project: encompasses a 1.7

mile segment on Main Street (a/k/a NYS Route 17C) between Floral Avenue and Front Street

for, among other things, replacement and installation of new ADA compliant curb ramps,

sections of sidewalks, sidewalk bumpouts, stormwater sewer inlets, crosswalk striping, as well as

upgrading pedestrian signals. The parcel owned by 4 Main Street LLC consists of approximately

4000 square feet and is located at the northeast corner of the intersection of Main Street and

Front Street in the City of Binghamton, New York. The fee interest that petitioner seeks to

acquire out of the entire 4 Main Street LLC parcel is a triangular shaped piece of land consisting

of approximately 111 square feet (hereinafter "the Subject Parcel") (NY St Cts Elec Filing

[NYSCEF] Doc No. 16, p 2). The work to be performed on the Subject Parcel includes the

replacement of the existing sidewalk with an ADA compliant curb ramp. Petitioner asserts that

The condemnee, 4 Main Street LLC, did not appear by counsel. All papers in opposition to the
petition and in support of the cross-motion to dismiss were submitted by Liam P. Burn, the
principal owner of the LLC and presumably not an attorney (NYSCEF Doc No. 29). According
to CPLR § 321, all corporations, including LLCs, must appear by counsel. This deficiency alone
is a basis to find the LLC in default but the court will nevertheless consider the papers.
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INDEX NO. EFCA2023002255
(FILED: BROOME COUNTY CLERK: &2/0%/2023 04:40 PM
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: @2/04/2023

said purpose will not impact the remainder of the 4 Main Street LLC property.

In opposition, the condemnee raises numerous issues including valuation discrepancies,

the failure of petitioner to establish it is exempt from EDPL hearing requirements, and failure to

consider less invasive alternatives. In addition, in support of the cross-motion to dismiss, the

condemnee raises issues of "[I]ack of personal jurisdiction, insufficiency of process,

insufficiency. of service of process, failure to acquire jurisdiction over respondent, deprivation of

due process rights, and failure to state a cause of action" (NYSCEF Doc No. 22).

DISCUSSION

The Court of Appeals has explained that:

"[uJnder the Eminent Domain Procedure Law (EDPL), a two-step
process is required before a condemnor obtains title to property for
public use. First, under EDPL Article 2, the condemnor must make a
determination to condemn the property either by using the hearing and
findings procedures of EDPL 203 and 204 or by following an alternative
procedure permitted by EDPL 206. Second, pursuant to EDPL Article 4,
the condemnor must seek the transfer of title to the property by
commencing a judicial proceeding known as a vesting proceeding"

(Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 543 [2006]).

EDPL § 402 (B) (5) states that "[u]pon due proof of service of notice and upon filing of

such petition and proof to [the court's] satisfaction that the procedural requirements . . . have

been met, the court shall direct the immediate filing and entry of the order granting the petition

...." (emphasis added).

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INDEX NO. EFCA2023002255
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Turning to the condemnee's objections, to the extent the condemnee challenges the

sufficiency or insufficiency of the amount of compensation offered by petitioner, this issue is not

properly raised in an EDPL Article 4 vesting proceeding. If the landowner believes that the

amount of compensation is inadequate, the remedy, if any, is to commence a separate proceeding

pursuant to EDPL Article 5 or 6, not to raise the issue as part of this Article 4 proceeding (Matter

of Bluestone Gas Corp. of N.Y., Inc. [laboni], 116 AD3d 1182 [3d Dept 2014)).

Next, the condernnee argues that petitioner is not exempt from the hearing requirements

of EDPL Article 2. The court disagrees. The court finds the petition sufficiently details the

grounds for the exemption from compliance with the hearing requirements of the EDPL

(NYSCEF Doc No. 1, § { 8-26). As such, the court finds petitioner properly established it is

exempt from conducting a public hearing with respect to the Project, as otherwise required by

Article 2 of the EDPL, on the grounds set forth.in EDPL § § 206 (A) and (D).

The court further finds that the condemnee's argument that petitioner failed to consider

less invasive alternatives to be without merit. The petition recites alternate options were

considered and rejected (NYSCEF Doc No. 3, p "1-3").

Upon an examination of said petition, the court finds that petitioner has complied with

the procedural requirements of EDPL Article 4. Accordingly, pursuant to EDPL § 402 (B) (5),

this court is required to direct the immediate filing and entry of an order granting the petition

unless there is merit to any of the issues raised in the condemnee's motion to dismiss.

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Turning to the condemnee's motion to dismiss, the issues raised by Mr. Burns are "[I]ack

of personal jurisdiction, insufficiency of process, insufficiency of service of process, failure to

acquire jurisdiction over respondent, deprivation of due process rights, and failure to state a

cause of action" (NYSCEF Doc No. 22).

The issues of lack of personal jurisdiction, insufficiency of process, insufficiency of

service of process, and failure to acquire jurisdiction over respondent are intertwined and can be

addressed jointly. First and foremost, it is well-settled that a condemnation proceeding is an in

rem proceeding against the land (Matter of County of Nassau [Gelb - - Siegel], 24 NY2d 621, n

1 [1969]). In rem proceedings do not require obtaining personal jurisdiction. With respect to

arguments regarding process, the record establishes, and Mr. Burns concedes, tliat the record

owner of the parcel is 4 Main Street LLC, not himself in his individual capacity. The record

establishes that petitioner properly served the record owner, 4 Main Street LLC, by delivery to

the New York State Secretary of State on October-16, 2023, with copies being mailed that same

date to the LLC via certified mail, return receipt requested. Simply stated, Mr. Burns is incorrect

that he should have been served directly with the petition since an LLC is a legal entity distinct

from its members. The court finds petitioner has demonstrated proper service on the LLC.

To the extent that Mr. Burns raises due process and/or failure to state a cause of action

arguments relating to the caption and/or his initial inability to register in the NYSCEF system,

these arguments are without merit. Regarding the caption, Mr. Burns alleges that the petition is

defective because neither the LLC nor Mr. Burns, himself, is identified in the caption. Mr. Burns

does not cite to any provisions of the EDPL or controlling case law that requires a condemnor to

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INDEX NO. EFCA2023002255
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name the parties holding title to the properties sought to be acquired as respondents in the

caption. In fact, the language of EDPL § 402 (B) (3), which governs the content of a Petition in

eminent domain proceedings contains no such requirement.” Moreover, EDPL § 103 (C) defines

the term "condemnee" to mean "the holder of any right, title, interest, lien, charge or

encumbrance in real property subject to an acquisition or proposed acquisition." As noted above,

Mr. Burns acknowledges that 4 Main Street LLC holds record title to the Subject Property. In

addition, the court finds the issues raised regarding NYSCEF have no substantive impact on the

merits of this case.

Any remaining affirmative defenses and/or arguments in support of the motion to dismiss

have been considered and determined to be without merit.

CONCLUSION

Based on the foregoing, it hereby ORDERED and ADJUDGED as follows:

1 The petition is granted;

2 Petitioner shall file, or cause to be filed, this Decision & Order in the Office of the
County Clerk of the County of Broome, whereupon petitioner shall have
permission to file the acquisition map herein in the Office of the County Clerk of
Broome County;

Title to the property interests, as described in the Verified Petition and acquisition
map herein, shall vest in the petitioner upon filing of said Decision & Order and
the acquisition map herein with the Clerk of the County of Broome;

Condemnee shall have one (1) year from the filing of the acquisition map and
service of the notice of acquisition to file and serve a claim for compensation
under the Eminent Domain Procedure Law.

7In addition, CPLR § 401 does not compel a contrary conclusion because the EDPL takes
precedence over the CPLR.
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This constitutes the decision, order and judgment of the court,

KA.
HON. OLIVER N. , Il
Justice, Supreme Court
Dated: December 7th, 2023
Binghamton, New York

All papers submitted in connection with this motion, and the Decision and Order, have
been electronically filed with the Broome County Clerk through the NYSCEF System.

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Oliver N Blaise Iii Track Judge’s New Case

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January 04, 2024

Case Filing Date

October 12, 2023

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Document for City Of Binghamton, New York v. Not Applicable. Map 9

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