Majority
Appeal from a judgment of the Supreme Court (McNamara, J.), entered January 29, 2007 in Albany County, which, among other things, granted petitioner’s application, in a proceeding pursuant to CFLR article 78, to compel respondent to comply with the Abandoned Froperty Law and process certain claims ,in the absence of a notarized finder agreement.
The State Office of Unclaimed Funds (hereinafter OUF) is a branch of respondent and serves as the recipient, fiduciary and disbursement office for abandoned or unclaimed assets held by respondent. Companies such as petitioner are referred to as “finders” and are engaged in the business of locating individuals who are entitled to such property and then assisting them with filing claims to recover their assets. Fursuant to Abandoned Property Law § 1416, no agreement between a property owner (hereinafter claimant) and a finder to locate property held by respondent is valid “unless that agreement: (a) is in writing and signed by the property owner; (b) discloses the nature of the property; and (c) discloses the name and address of the holder.” Such agreements are submitted to OUF as part of the
Nevertheless, the record indicates that, in 2004, petitioner requested approval from OUF of a revised finder agreement form that, among other things, did not provide for notarization. Petitioner was advised that this was not acceptable and any unnotarized finder agreements received after a certain date would be rejected, with processing of those claims suspended pending submission of forms that OUF deemed appropriate. Thereafter, following additional disagreements between petitioner and OUF regarding other proposed changes to the contents of petitioner’s forms, petitioner commenced this CPLR article 78 proceeding claiming, among other things, that a notarized finder agreement is not required by Abandoned Property Law § 1416 and OUF’s requirement in that regard amounted to a rule mandating compliance with the State Administrative Procedure Act. Along with other relief, petitioner sought to compel OUF to process finder agreements without notarizations. Supreme Court, among other things, granted the petition to the extent of finding that the challenged notarization requirement was an unpromulgated rule that could not be enforced. Respondent now appeals.[2]
Respondent maintains that Supreme Court improperly held that the notarization requirement constitutes a rule under State Administrative Procedure Act § 102 (2). We do not agree. A rule is “ ‘a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers’ ” (Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225 , 229 [1996], quoting Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948 , 951 [1985]; see Matter of Cordero v Corbisiero, 80 NY2d 771 , 772-773 [1992]; Matter of Taylor v New York State Dept. of Correctional Servs., 248 AD2d 799 , 800 [1998]). While it is true, as
1 Notably, the Abandoned Property Law expressly provides for verified documents under certain circumstances in other sections of the statute (see e.g. Abandoned Property Law § 301 [1]; § 401 [1]; §§ 503, 603, 1406, 1408), but there is no such requirement for claimants specifically stated with respect to Abandoned Property Law § 1416.
2 We note that although petitioner originally filed a cross notice of appeal challenging those aspects of Supreme Court’s judgment which ruled in favor of OUF, petitioner has now withdrawn its cross appeal.
Notably, respondent proffers several arguments in support of his assertion that notarization is a reasonable requirement. Nonetheless, regardless of the merit of these contentions, the fact remains that notarization, as enforced by OUF, was a nondiscretionary and “rigid . . . policy invariably applied across-the-board . . . without regard to individualized circumstances or mitigating factors” (Matter of Senior Care Servs., Inc. v New York State Dept. of Health, 46 AD3d 962 , 964-965 [2007] [internal quotation marks and citation omitted]; see Matter of Cordero v Corbisiero, 80 NY2d at 772-773 ; Matter of Pallette Stone Corp. v State of N.Y. Off. of Gen. Servs., 245 AD2d 756 , 758 [1997]). Therefore, we find no basis to disturb Supreme Court’s ruling that OUF’s finder agreement notarization policy was, in fact, a rule and, thus, it was required to comply with the State Administrative Procedure Act (see Matter of Schwartfigure v Hartnett, 83 NY2d 296 , 301 [1994]).
Carpinello, Rose, Malone Jr. and Stein, JJ, concur. Ordered that the judgment is affirmed, without costs.
Cases cited
- New York City Transit Authority v. New York State Department of Labor 88 NY2d 225 at 229 p. 1237
- Roman Catholic Diocese v. New York State Department of Health 66 NY2d 948 at 951 p. 1237
- Cordero v. Corbisiero 80 NY2d 771 at 772-773 p. 1237
- Taylor v. New York State Department of Correctional Services 248 AD2d 799 at 800 p. 1237
- Elcor Health Services, Inc. v. Novello 100 NY2d 273 at 279 p. 1238
- Suffolk Regional Off-Track Betting Corp. v. New York State Racing 47 AD3d 133 at 136 p. 1238
- HMI Mechanical Systems, Inc. v. McGowan 277 AD2d 657 at 658 p. 1238
- Cubas v. Martinez 8 NY3d 611 at 621 p. 1238
- Senior Care Services, Inc. v. New York State Department of Health 46 AD3d 962 at 964-965 p. 1238
- Pallette Stone Corp. v. State Office of General Services 245 AD2d 756 at 758 p. 1238
- Schwartfigure v. Hartnett 83 NY2d 296 at 301 p. 1238