IN RE: ELLIOTT JAMES

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

IN RE: ELLIOTT JAMES, PETITIONER–APPELLANT, v. CATTARAUGUS COUNTY, RESPONDENT–RESPONDENT. ELLIOTT JAMES, PETITIONER–APPELLANT PRO SE.

CA 11–02004

Decided: December 21, 2012

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ. THOMAS C. BRADY, COUNTY ATTORNEY, LITTLE VALLEY, FOR RESPONDENT–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  In this proceeding pursuant to CPLR article 78, petitioner appeals from a judgment that dismissed his petition to compel respondent to return money and property seized in the course of a prior criminal investigation.   Petitioner was convicted of attempted criminal possession of a controlled substance in the fourth degree in 1994, and the judgment of conviction was reversed by this Court in 1995 (People v. James, 217 A.D.2d 969).   We note at the outset that, although a CPLR article 78 proceeding is an “appropriate vehicle for petitioner to seek the return of his property” (Matter of Marshall v. Soares, 94 AD3d 1258, 1259;  see Boyle v. Kelly, 42 N.Y.2d 88, 91), “the requirement that a notice of claim be timely filed where the gravamen [of the proceeding] is the wrongful retention by a municipality of money or property after the dismissal of a criminal action in the course of which the money or property had been seized ․ may not be evaded by resort to a CPLR article 78 proceeding instead of an action in tort for conversion, or by an action upon the equitable principle of unjust enrichment” (Matter of Abramowitz v. Guido, 61 A.D.2d 1045, 1045;  see Smith v. Scott, 294 A.D.2d 11, 17;  Matter of Ganci v. Tuthill, 216 A.D.2d 390, 390–391).   Inasmuch as petitioner failed to file a notice of claim, the petition was properly dismissed.

We further conclude in any event that petitioner's claims are barred by the doctrine of laches.   A petitioner “may not delay in making a demand [for the return of money or property] in order to indefinitely postpone the time within which to institute the proceeding.   The petitioner must make his or her demand within a reasonable time after the right to make it occurs” (Matter of Barresi v. County of Suffolk, 72 AD3d 1076, 1076, lv denied 15 NY3d 705;  see Matter of Sheerin v New York Fire Dept. Arts. 1 & 1B Pension Funds, 46 N.Y.2d 488, 495–497, rearg. denied 46 N.Y.2d 1076).   Inasmuch as petitioner “proffered absolutely no excuse for his [more than 14–year] delay in making the demand” for the return of his money and property, the proceeding is barred by the doctrine of laches (Matter of Schwartz v. Morgenthau, 23 AD3d 231, 233, affd 7 NY3d 427;  see Matter of Thomas v City of Buffalo Inspections Dept., 275 A.D.2d 1004, 1004;  Matter of Densmore v Altmar–Parish–Williamstown Cent. School Dist., 265 A.D.2d 838, 839, lv denied 94 N.Y.2d 758).   We have considered petitioner's remaining contentions and conclude that they are without merit.

Frances E. Cafarell

Clerk of the Court