Dunhill Mfg. & Dist. Corp. v. State Park Commission , 42 A.D.2d 442 ( 1973 )


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  • Steuer, J.

    We believe the disposition of Special Term should be affirmed, though not specifically on the grounds stated.

    Petitioners were business tenants on property condemned by the State in eminent domain proceedings. Petitioner made an application to the respondent State Park Commission for the City of New York for moving expenses, alleging those expenses to be $63,517.01. Title vested in the State on July 7,1969. Petitioner moved over a period of several days beginning. June 2, Í970. The statute (Conservation Law, § 676-a), providing for moving expenses for a tenant of condemned property, as it read on July 7, Í969, limited the amount recoverable to $25,000. On April 24, 1970, the section was amended to allow reasonable and necessary moving expenses.” (L. 1970, eh. 249, § 7.) Respondent rejected the claim on several grounds: that the limitation of $25,000 applied because the determination date was the date of vesting of title rather than the moving date; that the appEcation contained items of expense that were unreasonable and improper; and that petitioner owed the commission a sum for unpaid rent. Respondent conceded that the reasonable and proper expenses were at least $25,000, and has since paid that amount.

    Petitioner then instituted this article 78 proceeding to require the commission to pay the balance. Special Term dismissed the petition on the ground that this was a proceeding ancillary to the condemnation of the property and that jurisdiction was in the Court of Claims. We beEeve that jurisdiction of any claim that petitioner may have is in the Court of Claims but that whether or not it is ancillary to and embraced in section 9 of the Court of Claims Act is unnecessary to decide.

    Nothing is clearer nor better settled in our. jurisprudence than that claims against the State are cognizable in the Court of Claims, and in that court only. An article 78 proceeding in the nature of mandamus is really á proceeding against an officer to require the officer to perform a ministerial act enjoined by law. No such situation is presented here. The amount to be paid and the proper interpretation of the statute are eventually questions for the court, and the resolution of those questions is not a ministerial act. Consequently, petitioner’s remedy is not by way *444of article 78 (mandamus) but by suit against the State. Were it otherwise, any person having a claim, liquidated or, as here, unliquidated, could proceed by way of getting a court direction to make payment.

    We are not called upon to decide whether the statute in its original form or as amended has application in this situation. : That should be decided if petitioner brings an action, and we i express no opinion on that issue.

    The judgment of the Supreme Court, entered February 23, 1973, in New York County, should be affirmed, without costs or disbursements.

Document Info

Citation Numbers: 42 A.D.2d 442

Judges: Lane, Steuer

Filed Date: 10/25/1973

Precedential Status: Precedential

Modified Date: 1/12/2022