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James v. Cattaraugus County

101 A.D.3d 1674 Court N.Y. App. Div. Decision date 2012-12-21 English

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p. 1674
In the Matter of Elliott James, Appellant, v Cattaraugus County, Respondent.
[956 NYS2d 379]

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

p. 1675
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 AD2d 969 [1995]). 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 [2012]; see Boyle v Kelley, 42 NY2d 88 , 91 [1977]), “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 AD2d 1045 , 1045 [1978]; see Smith v Scott, 294 AD2d 11 , 17 [2002]; Matter of Ganci v Tuthill, 216 AD2d 390 , 390-391 [1995]). 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 [2010], lv denied 15 NY3d 705 [2010]; see Matter of Sheerin v New York Fire Dept. Arts. 1 & IB Pension Funds, 46 NY2d 488 , 495-497 [1979]. rearg denied 46 NY2d 1076 [1979]). 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 [2005], affd 7 NY3d 427 [2006]; see Matter of Thomas v City of Buffalo Inspections Dept., 275 AD2d 1004 , 1004 [2000]; Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838 , 839 [1999], lv denied 94 NY2d 758 [2000]). We have considered petitioner’s remaining contentions and conclude that they are without merit. Present — Scudder, P.J., Fahey, Carni, Lindley and Sconiers, JJ.

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