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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 (2^nd 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 (1^st 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 (4^th 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