HESS CORPORATION FORMERLY KNOWN AS AMERADA HESS CORPORATION RESPONDENT APPELLANT v. << (2010)

MEMORANDUM AND ORDER

LOCATED AT 410 HIAWATHA BOULEVARD WEST AT

INTERSECTION OF HIAWATHA BOULEVARD WEST AND

CAROUSEL CENTER DRIVE IN CITY OF SYRACUSE,

WHICH PARCEL COMPRISES A PORTION OF THE SITE

FOR THE PHASED PUBLIC PROJECT KNOWN AS DESTINY

USA.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Petitioner, City of Syracuse Industrial Development Agency (SIDA), commenced this proceeding pursuant to EDPL article 4 seeking to acquire title to a parcel of real property owned by respondent.   SIDA previously authorized the condemnation of respondent's property, as well as the condemnation of other property, in proceedings commenced pursuant to EDPL article 2 (Matter of Kaufmann's Carousel v City of Syracuse Indus.   Dev. Agency, 301 A.D.2d 292, lv denied 99 N.Y.2d 508;  Matter of J.C. Penney Corp. v. City of Syracuse, 301 A.D.2d 305, appeal dismissed 99 N.Y.2d 609;  Matter of 843 Hiawatha Blvd. LLC v City of Syracuse Indus.   Dev. Agency, 301 A.D.2d 305).   Contrary to respondent's contention, Supreme Court properly concluded that it lacked jurisdiction to determine the merits of the contention of respondent that its due process rights were violated and granted the petition (see generally EDPL 402[B][5] ).  “The power of the condemnation court to entertain claims raised by the pleadings in a condemnation proceeding is limited to matters of procedural compliance not within the scope of review by the Appellate Division” (Matter of UAH-Braendly Hydro Assoc. v RKDK Assoc., 138 A.D.2d 493, 493;  see EDPL 207, 208;  Matter of Broome County [Havtur], 159 A.D.2d 790, appeal dismissed 76 N.Y.2d 771, lv denied 76 N.Y.2d 709;  Matter of Incorporated Vil. of Patchogue v Simon, 112 A.D.2d 374).   In contending that it was deprived of its right to due process by SIDA's alleged insufficient notice of the prior EDPL article 2 proceeding, respondent is in fact contending that the prior “proceeding was [not] in conformity with the federal and state constitutions” (EDPL 207[C][1] ), and that contention therefore should have been raised before this Court in an original proceeding pursuant to EDPL 207 (see EDPL 208;  Broome County, 159 A.D.2d 790).   Respondent failed to raise that contention in such a proceeding, however, and “may not [now] circumvent the command of the statute with respect to the procedures governing judicial review by raising [its] objections within the context of an EDPL article 4 vesting proceeding” (Incorporated Vil. of Patchogue, 112 A.D.2d 374, 375, lv denied 66 N.Y.2d 605).

Patricia L. Morgan

Clerk of the Court