         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1338
CA 11-02004
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF ELLIOTT JAMES,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CATTARAUGUS COUNTY, RESPONDENT-RESPONDENT.


ELLIOTT JAMES, PETITIONER-APPELLANT PRO SE.

THOMAS C. BRADY, COUNTY ATTORNEY, LITTLE VALLEY, FOR
RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Cattaraugus County
(Michael L. Nenno, A.J.), entered September 19, 2011 in a proceeding
pursuant to CPLR article 78. The judgment dismissed the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     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 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). 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; see Boyle v Kelly, 42 NY2d 88, 91), “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; see Smith v Scott, 294 AD2d 11, 17; Matter of Ganci v Tuthill,
216 AD2d 390, 390-391). 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
                                 -2-                          1338
                                                         CA 11-02004

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, lv denied 15 NY3d 705; see
Matter of Sheerin v New York Fire Dept. Arts. 1 & 1B Pension Funds, 46
NY2d 488, 495-497, rearg denied 46 NY2d 1076). 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, affd 7 NY3d 427; see Matter of Thomas v
City of Buffalo Inspections Dept., 275 AD2d 1004, 1004; Matter of
Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d
838, 839, lv denied 94 NY2d 758). We have considered petitioner’s
remaining contentions and conclude that they are without merit.




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
