SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF Cattaragus
TRATHEN LAND COMPANY, LLC,
Plaintiff,
AFFIRMATION
-vs- Index # 69906
THE CITY OF BUFFALO,
THE STATE OF NEW YORK,
EMPIRE STATE DEVELOPMENT CORPORATION,
DORMITORY AUTHORITY OF
THE STATE OF NEW YORK,
TOWN OF PERRYSBURG, NEW YORK
Defendants.
STATE OF NEW YORK )
LIVINGSTON COUNTY )ss.:
SCOTT D. CANNON, being duly sworn, affirms under penalty of perjury as follows:
1. I am an attorney duly licensed to practice law in the State of New York and make this affirmation in support of a Notice of Motion for summary judgment submitted by the plaintiff herewith.
2. This affirmation is based upon books and records kept at my law office and my personal knowledge of events detailed herein, unless stated “upon information and belief”.
3. This action was commenced on May 17, 2005 by the filing of a summons and complaint in the Cattaraugus County Clerk’s office. A copy of the summons and complaint is attached hereto and made a part hereof as Exhibit A. The summons and complaint was then personally served upon each of the defendant’s as illustrated by affidavits of service filed by your deponent in the County Clerk’s office.
4. This is an action to quiet title to a 649 acre piece of real property in the town of Perrysburg, Cattaraugus County presently owned by defendant State of New York (“State”). This property is commonly known as the J.N. Adam Developmental Center (the “premises”). The State acquired title to this property from the City of Buffalo by virtue of two deeds filed in the County Clerk’s office, copies of which are attached to the summons and complaint as Exhibits 2 and 3.
5. The operative deed at Exhibit 3, filed in 1960, relates
“.... in the event that at any time subsequent to this conveyance the State Commissioner of Mental Hygiene determines that it is no longer economical or advisable for the State to continue to operation of said J.N. Adam Memorial Hospital for the care and treatment of mentally retarded patients, then, upon the discontinuance of such hospital by the State, the title to the above described and herein granted lands and the buildings pertaining thereto, together with all other rights and interest in the real property pertaining to said hospital and herein granted by the said party of the first part, shall, without obligation on the part of the party of the first part, revert to and be revested in the said party of the first part.” (hereinafter the “reverter clause”).
6. This reverter clause is the subject of plaintiff’s claims. As plaintiff has signed a contract with the State to purchase the premises, he cannot acquire good title under the cloud of the reverter clause.
7. It is beyond dispute that the reverter has been “triggered”, as the premises ceased to have been used for the care and treatment of mentally retarded persons since the spring of 1993.
8. Attached hereto and made a part hereof as exhibit “B” is the Answer of defendants State of New York, Empire State Development Corporation, and Dormitory Authority of the State of New York. In this Answer, all of the defendants admit, in paragraph “SEVENTH”, that the premises ceased to be used as a hospital for the care and treatment of developmentally disabled/retarded persons in April, 1993. This is significant as defendant State of New York is the titled owner to the property and managed the facility through the New York State Office of Mental Retardation and Developmental Disabilities.
9. Also attached hereto as Exhibit “C” is an affidavit of Cindy L. Lauer, former town clerk and supervisor for the town of Perrysburg, in which she swears by her own personal knowledge that the premises ceased being used as facility for the care and treatment of developmentally disabled/mentally retarded persons in 1993.
10. Ms. Lauer also relates in her affidavit that at no time during her tenure as town supervisor did defendant City of Buffalo make any claim to ownership or possession of the premises. Ms. Lauer also relates that for the last dozen years she and others have expended great efforts in attempting to get this issue resolved for benefit of the people of the state and town of Perrysburg.
11. Attached hereto as Exhibit “D” is the Answer of defendant City of Buffalo. This defendant does not make a claim to ownership or possession of the property, but instead affirms that the reverter has not been triggered. This position is untenable and contrary to the undisputed facts.
12. Attached hereto as Exhibit “E” is an affidavit of Thomas S. Trathen, sole owner of plaintiff, in which he details his personal knowledge of the history of the premises, his contacts with Buffalo City officials, and his damages caused by the cloud hanging over title to the premises as contract vendee.
13. It also undisputed that defendant City of Buffalo has failed to commence an action to recover possession of the property within ten years of the time the reverter was triggered, per Real Property Actions and Proceedings Law §612.
14. Real Property Actions and Proceedings Law §612, states, in relevant part:
Ҥ 612. Where action cannot be maintained; action based on a reverter or breach of condition subsequent
1. Except as otherwise provided in this section, an action to recover the possession of real property cannot be maintained where it is founded upon a claim of reverter of an estate in fee conveyed upon special limitation or founded upon a claim of breach of a condition subsequent, other than a condition of a lease for a term of years, unless (a) within ten years after the occurrence of the reverter or the first occurrence of the breach, the plaintiff, or any predecessor in interest then entitled to possession or to exercise the power of termination, shall have served upon the person or persons against whom the action might then have been commenced a written demand that possession be delivered, stating the ground thereof, and the action is commenced within one year thereafter or (b), if no such demand is served, the action is commenced within such ten years.”
15. Plaintiff is entitled to summary judgment on his first cause of action to quiet title under RPAPL §612, as there are no triable issues of fact before this court.
16. Summary judgment is designed to expedite civil cases by eliminating from the trial calendar claims which can be decided as a matter of law. Andre vs. Pomeroy, 35 N.Y.2d 361, 363 N.Y.S.2d 131 (1974). The function of the court when faced with a summary judgment motion is issue finding rather than issue determination. Mayland vs. Craighead, 144 A.D.2d 344, 533 N.Y.S.2d 946 (2nd Dept. 1988).
17. Upon a motion for summary judgment, the facts must be taken as sworn by the defendant. Branerton Corp. vs. Untied States Corporation Co., 34 A.D.2d 1, 309 N.Y.S.2d 28 (1st Dept. 1970). The plaintiff is entitled to the benefit of every favorable inference which may be drawn from the pleadings, affidavits, etc. Egan real Estate, Inc. vs. McGraw, 40 A.D.2d 299, 339 N.Y.S.2d 870 (4th Dept. 1973).
18. The only issues before the court on Plaintiff’s first cause of action are whether or not the reverter has been triggered, and if so, was an action timely commenced by defendant City of Buffalo to obtain title and possession? It is respectfully submitted that the facts unquestionably support plaintiff’s demand for summary judgment as the reverter was triggered and no timely action has been commenced by defendant city to recover possession of the premises under RPAPL §612.
19. It is also submitted that plaintiff is entitled to summary judgment on his second cause of action under the doctrine of laches, as more than twelve years have elapsed since the reverter was triggered and defendant City of Buffalo has taken no action whatsoever to obtain possession or title to the property.
WHEREFORE, plaintiff asks that this Court grant summary judgment to the plaintiff on both of his causes of action; declaring that defendant State of New York has title to the premises and that the reverter clause is null and void; and awarding the plaintiff costs and fees according to statute.
Dated: June 8, 2005
Scott D. Cannon
Attorney for Plaintiff
28 Main Street, P.O. Box 446
Geneseo, New York 14454
(585)-243-9330
To: Michael B. Risman,
Corporation Counsel
City of Buffalo, Department of Law
65 Niagara Square, 1100 City Hall
Buffalo, New York 14202-3379
Audrey V. Bullen, Esq.
Assistant Attorney General
State Counsel Division, Real Property Bureau
Albany, New York 12224
__________________________________________________________________________
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AFFIDAVIT
STATE OF
Cindy L. Lauer, being duly sworn, deposes and says:
- My name is Cynthia L. Lauer and I reside at
- I am presently employed by the Town of
- I am making this affidavit at the request of attorney Scott D. Cannon. All of the facts stated in this affidavit are made by me based on my own personal knowledge.
- From 1982 through 1985 I was employed by the Town of
- The J.N. Adam property was owned and operated during my tenure as both clerk and supervisor by the State of
- Unfortunately, the State of New York closed the facility due to financial constraints in March/April 1993, and ceased caring for developmentally disabled/mentally retarded persons on or about March???, 1993. Attached hereto as Exhibit “1” are copies of various newspaper articles that were published in local papers at the time reporting the closing of the facility.
- I was aware that the City of
- Since the facility closed, as town clerk and town supervisor, I devoted a substantial amount of my time and effort to get the property developed and back on the town tax roll, as the state did not pay taxes on the property and I was hoping to bring jobs into the town through the development of the property. In this connection, I met with officials from the City of
- As part of the foregoing, I was informed by Buffalo Mayor James Griffin and other City Council representatives that the City did not want the property, but that the City might be interested in a land “swap”, whereby the State would give to the City a piece of land down by the waterfront in Buffalo, in exchange for the release of their reverter right in the J.N. Adam property. For a variety of reasons this did not occur.
- At no time during my tenure with the town, from 1982 through the present day, did the City of Buffalo take any steps whatsoever to assert any ownership rights in the property, and has done nothing but foil the efforts of others to put the property back to good use.
- The property continues to sit deserted and is falling into significant disrepair. It is a shame that for the last twelve years this property has been allowed to remain vacant and to deteriorate, all to the detriment to the taxpayers.
- The citizens of the Town of
Dated: July 13, 2005
Cindy L. Lauer
Sworn to before me this
day of June, 2005.
Notary Public
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RESOLUTION to be introduced to Buffalo's Common Council 7/12/05
Sponsor: Mr. Golombek
Co-Sponsor:
RE: Support for Judge Nowak and Housing Court Liaison Volunteers
Whereas, the issues addressed in Housing Court are critical to the future revitalization of Buffalo; and
Whereas, City Court Judge Henry J. Nowaks short tenure in Housing Court has brought about a proactive, Innovative and collaborative effort in addressing Buffalos housing problems; and
Whereas, As a Housing Court Judge Henry J. Nowak has imposed more fines (over $3 million) than his predecessors had in the previous four years combined ($525,712); and
Whereas, the increase in fines was accomplished by Judge Nowak suggesting that building inspector complain forms indicate a violation from a certain date, making fines $1,500 per day instead of just $1,500; and
Whereas, under Judge Nowaks term in Housing Court, defendants have been sentenced to community service by requiring slumlords to pick up garbage, paint houses, build porches and plant flowers; and
Whereas, Judge Nowak has issued orders to vacate properties being utilized by drug dealers. These orders to vacate are a crime fighting tool, giving police more flexibility to make arrests. Police can remove and arrest anybody on such properties immediately; and
Whereas, by taking the time to do legal research on the power of Housing Court, Judge Nowak determined that he could appoint a receiver and provide the receiver the power to go after 40 banks and lenders with outstanding housing code violations in the city; and
Whereas, under Judge Nowak, Housing Court cases are scheduled differently to allow Housing Inspectors more time to actually conduct inspections instead of spending every day in Court; and
Whereas, through the leadership of Judge Nowak, Housing Court Liaisons have been created consisting of dedicated community volunteers; and
Whereas, Housing Court Liaisons provide valuable community input into Housing Court decisions that impact the quality of life in our neighborhoods; and
Whereas, it is difficult to understand why the Permit and Inspections Department allowed a four month backlog of 523 housing cases to sit on tables instead of being processed for Court appearances, when I and others offered staff and volunteers to help with processing cases; and
Whereas, it is also difficult to understand why the City Permits and Inspections Department would not fully embrace the assistance of dedicated Housing Court Liaisons who are working to improve city neighborhoods; and
Whereas, it is truly unfortunate that the City Permits and Inspections Department has taken the position that they will no longer meet with Court Liaisons to discuss Housing Court cases; and
Whereas, typically City Court Judges are appointed by the Chief Judge of City Court for a one year term in Housing Court and then replaced by a successor; and
Whereas, it is important to continue the innovations and collaborations begun by Judge Nowak, by keeping him in Housing Court for another term; and
Now Therefore Be It Resolved
That the Buffalo Common Council supports keeping City Court Judge Henry J. Nowak in Housing Court for another one year appointment to continue his proactive and innovative efforts to address Buffalos housing issues.
Be It Further Resolved
That the Buffalo Common Council supports the work and efforts made by the dedicated volunteers who serve as Housing Court Liaisons.
Be It Further Resolved
That a certified copy of this resolution be forwarded by the City Clerk to Hon. Thomas P. Amodeo Chief Judge of Buffalo City Court
Be It Finally Resolved
That if necessary this item is referred to an appropriate Committee of the Council for further consideration.
Editor:
Friends?? of JN Adam -- Huh, this couldn't be further from the truth! Here we go with another handful of people who think they are doing the right thing, but in fact are contributing to the further deterioration of the once beautiful buildings. Time is running out to save the campus!!!
Let me take you all back a few decades. I'm sure most people are aware the the JN Adam site was a grand hospital for the care of people with tuberculosis, and then converted to a residence for the mentally and physically handicapped. It is also common knowledge that the land reverted back to the City of Buffalo once the state no longer used it for this purpose, which was March 22, 1993 when the last resident was moved out of the facility.
The Buffalo connection has been a stumbling block for decades, causing great loss of potential jobs and property tax base. The city has known for many years -- back into the Mayor Griffin era -- about the property ownership reverting back to them. The City of Buffalo cannot own land outside their boundaries without being liable for property taxes. For too many years they have eluded the tax liability and have caused great harm to the people of Perrysburg and surrounding areas. It has been bad enough trying to overcome the obstacles of the city's greediness and the state's inaction -- now we have a couple "do-good" groups trying to block efforts to finally get the site out of the government tug of war, and get our community out of the bottomless sink hole in the middle of it. The only way anything good will ever come to this property is to get it out of government hands.
The state has expended hundreds of thousands of dollars over a period of many years to market the site and put it into a productive status, and has successfully put it out for bid twice. Every year that is wasted accelerates the deterioration of the buildings, and soon they will be beyond saving. It has been bad enough that the city's greed has cost our area dearly over all these years, and the "do-good" groups have created even more harmful obstacles.
The City of Buffalo has squandered away the value of the once-grand buildings, worth millions in the early 1990s than now can only bring a few hundred thousand at auction. That loss is their problem. What concerns me is the possible loss of the latest successful bidder and the positive impact for our community, plus the critical, time-sensitive water project funding. I estimate about half of a million has been lost in school, town, and county property taxes in just a few years. If calculated back to March 22, 1993 when it should have been returned to a taxable status, it is over $2 million! An even greater loss is the jobs and sales tax revenues that would have incurred in the past 12 years.
I have been a public servant to the community since Jan. 1, 1982 and have seen many opportunities come and go because of the political manipulations. In March of 1987, the state budgeted to build a state-of-the-art $4.9 million day program and therapy building on the campus, at the same time they were in the process of building the first six SRU (special residential units), commonly known as group homes. I wonder where that money went, or was it ghost money as a pacifier so we would support the group home project? A few years later, the state did pay about $5 million for the elevator system project in some of the buildings, and then a couple years later budgeted 2 more million dollars for the demolition of the end buildings where new elevators were constructed. That $2 million went somewhere else anyway. During the same time, I showed the buildings to a construction company owner who said he could restore the buildings for the $2 million, and to a demolition company's expert who said they were too good to destroy.
From about 1990 through 1993, I served on the Alternate Use Committee, along with many local political leaders, City of Buffalo representatives, JN Adam staff and local business representatives. The city was interested in a property exchange where they would acquire some Buffalo-area waterfront property owned by the state; in turn, the state would get clear title to the JN Adam property and possibly turn some of the land over to the town for development. Obviously that was another botched government deal.
Over the 10 years I served as town supervisor, we expended considerable time and effort trying to bring new life into the property. The Job Corps was interested in the site. We tried to get the Veteran's Retirement Home in on the site, but we were asked to back off -- more politics! We encouraged the Gowanda Psychiatric Center Offices to be located on the JN Adam Campus and retain the local jobs when GPC was closed, another failed effort. A few years ago, we were high on a short list of sites being cons\considered for a prison, but a few people put a monkey wrench in that. Every time something good gets going, we run into the same old blockades put up by politics, government greediness or power struggles, or a couple self-centered individuals.
It is time for the citizens in the community to put an end to the government nonsense and the meddling minority. The time is critical to get this property into a productive status. The town is not as incompetent as some people seem to think. We have zoning regulations and other means of ensuring the area's best interest is maintained. I'm calling for people to write letters to the City of Buffalo and state representatives to put an end to all this nonsense and quit holding this community hostage! Development of this nearly 700-acre site would be beneficial to all of the surrounding area, not just Perrysburg.
Cindy Lauer,
Perrysburg
