IN RE: COUNTY OF ORLEANS (2024)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: COUNTY OF ORLEANS, PETITIONER, v. GENESEE COUNTY INDUSTRIAL DEVELOPMENT AGENCY, DOING BUSINESS AS GENESEE COUNTY ECONOMIC DEVELOPMENT CENTER, GENESEE GATEWAY LOCAL DEVELOPMENT CORPORATION, STAMP SEWER WORKS, INC., G. DEVINCENTIS & SON CONSTRUCTION CO., INC., CLARK PATTERSON LEE AND HIGHLANDER CONSTRUCTION, RESPONDENTS.

379 Decided: June 14, 2024

PRESENT: WHALEN, P.J., CURRAN, GREENWOOD, NOWAK, AND KEANE, JJ.

LIPPES MATHIAS LLP, BUFFALO (ALEXANDER W. EATON OF COUNSEL), FOR PETITIONER. PHILLIPS LYTLE LLP, BUFFALO (CRAIG A. LESLIE OF COUNSEL), FOR RESPONDENTS GENESEE COUNTY INDUSTRIAL DEVELOPMENT AGENCY, DOING BUSINESS AS GENESEE COUNTY ECONOMIC DEVELOPMENT CENTER, GENESEE GATEWAY LOCAL DEVELOPMENT CORPORATION, STAMP SEWER WORKS, INC., AND G. DEVINCENTIS & SON CONSTRUCTION CO., INC.

MEMORANDUM AND ORDER

It is hereby ORDERED that said petition is unanimously dismissed without costs.

Memorandum: Petitioner commenced this proceeding pursuant to EDPL 207 seeking to annul the determination of respondent STAMP Sewer Works, Inc., to acquire by condemnation two temporary easements for placement of construction equipment in order to install an underground sewer force main, i.e., a wastewater pipeline, that begins in Genesee County and will run over the border into Orleans County. Respondents Genesee County Industrial Development Agency, doing business as Genesee County Economic Development Center, Genesee Gateway Local Development Corporation, STAMP Sewer Works, Inc., and G. DeVincentis & Son Construction Co., Inc., contend that the petition must be dismissed as untimely. We agree.

“A proceeding under EDPL 207 must be commenced within 30 days ‘after the condemnor's completion of its publication of its determination and findings’ ” (Matter of H.H. Warner, LLC v Rochester Genesee Regional Transp. Auth., 87 AD3d 1388, 1389 [4th Dept 2011], lv denied 19 NY3d 809 [2012], quoting EDPL 207 [A]). Here, the last date of publication was October 22, 2023, and thus the limitations period expired on November 21, 2023. The verified petition was not filed until November 22, 2023, rendering the filing untimely by one day (see Matter of Hothhouse v Village of Otisville, 35 AD3d 740, 740 [2d Dept 2006]).

Entered: June 14, 2024

Ann Dillon Flynn

Clerk of the Court

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