IN RE: Town of North Hempstead Community Development Agency

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

IN RE: Town of North Hempstead Community Development Agency, appellant, v. Geraldine Savage, respondent.

2008-04991 (Index No. 3558/05)

Decided: May 25, 2010

REINALDO E. RIVERA, J.P. ANITA R. FLORIO DANIEL D. ANGIOLILLO LEONARD B. AUSTIN, JJ. Mark A. Cuthbertson, Huntington, N.Y. (Jessica P. Driscoll of counsel), for appellant. Janice L. Jessup, Freeport, N.Y., for respondent.

Argued-May 11, 2010

DECISION & ORDER

In a condemnation proceeding, the condemnor appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCabe, J.), entered April 11, 2008, as granted that branch of the condemnee's motion which was, in effect, to extend her time to file a claim for damages pursuant to EDPL 503.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and that branch of the condemnee's motion which was, in effect, to extend her time to file a claim for damages pursuant to EDPL 503 is denied.

EDPL 503(B) provides that “[i]n a claim for damages arising from the acquisition of real property under [EDPL 501(B) ], a condemnee shall, within the time specified by the court, file a written claim, or notice of appearance.”   The Supreme Court has the discretion to “extend the time fixed by its own prior order ‘upon such terms as may be just and upon good cause shown’ ” (Grandinetti v Metropolitan Transp.   Auth., 74 N.Y.2d 785, 787, quoting CPLR 2004).   Here, the Supreme Court improvidently exercised its discretion in granting that branch of the motion of the condemnee, Geraldine Savage, which was, in effect, to extend her time to file a claim for damages pursuant to EDPL 503.   The condemnee “furnished neither an affidavit of merit[ ] nor a reasonable excuse” for her failure to file such a claim within the time specified by the Supreme Court in a prior order (Grandinetti v Metropolitan Transp.   Auth., 74 N.Y.2d at 787;  see Matter of City Tunnel No. 3, 267 A.D.2d 382, 383;  Tennessee Gas Pipeline Co. v. Bontrager Realty, 191 A.D.2d 1002, 1003;  Metropolitan Transp.   Auth. v. Pizzuti, 156 A.D.2d 546).

The parties' remaining contentions are without merit.

RIVERA, J.P., FLORIO, ANGIOLILLO and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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