          SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

820
CA 11-00325
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF THE APPLICATION OF
PETITIONER/CONDEMNOR NEW YORK STATE URBAN
DEVELOPMENT CORPORATION, DOING BUSINESS AS
EMPIRE STATE DEVELOPMENT CORPORATION,
PETITIONER-APPELLANT, TO ACQUIRE IN FEE
SIMPLE CERTAIN REAL PROPERTY CURRENTLY
OWNED BY FALLSITE, LLC, AND KNOWN AS:
                                                   MEMORANDUM AND ORDER
232   SIXTH STREET, CITY OF NIAGARA FALLS
700   RAINBOW BLVD., CITY OF NIAGARA FALLS
231   SIXTH STREET, CITY OF NIAGARA FALLS
626   RAINBOW BLVD., CITY OF NIAGARA FALLS
701   FALLS STREET, CITY OF NIAGARA FALLS

SITUATED IN THE COUNTY OF NIAGARA, STATE OF
NEW YORK AND HAVING, RESPECTIVELY; THE FOLLOWING
TAX SECTIONS, BLOCKS, AND LOTS:

159.09-2-25.122
159.09-2-25.112
159.09-2-25.121
159.09-2-25.111
159.09-2-25.211

TOGETHER WITH ALL COMPENSABLE INTERESTS THEREIN
CURRENTLY OWNED BY FALLSITE, LLC, FALLSVILLE
SPLASH, LLC AND ANY OTHER CONDEMNEES WHO ARE
CURRENTLY UNKNOWN.
------------------------------------------------
FALLSITE, LLC AND FALLSVILLE SPLASH, LLC,
RESPONDENTS-RESPONDENTS.


HARRIS BEACH PLLC, PITTSFORD (PHILIP G. SPELLANE OF COUNSEL), FOR
PETITIONER-APPELLANT.

JOHN P. BARTOLOMEI & ASSOCIATES, NIAGARA FALLS, D.J. & J.A. CIRANDO,
ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal, by permission of the Appellate Division of the Supreme
Court in the Fourth Judicial Department, from an order of the Supreme
Court, Niagara County (Ralph A. Boniello, III, J.), entered January
10, 2011. The order directed the parties to appear at a conference to
discuss potential hearing dates.
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                                                         CA 11-00325

     It is hereby ORDERED that the order so appealed from is
unanimously vacated on the law without costs and the matter is
remitted to Supreme Court, Niagara County (Kloch, Sr., A.J.), for
further proceedings in accordance with the following Memorandum: In
this condemnation proceeding, petitioner appeals from an order of
Supreme Court (Boniello, III, J.) directing the parties to appear for
a scheduling conference with respect to respondents’ motion to vacate
a stipulated vesting order signed by Justice Boniello in July 2006.
Pursuant to the vesting order, respondents surrendered title to the
condemned property in return for an advance payment of $17 million,
while reserving their right to receive additional compensation under
EDPL 304 (A) (3). Respondents later sought additional compensation,
and the matter proceeded to trial before a different justice, i.e.,
Acting Supreme Court Justice Kloch, Sr. Following a 17-day trial,
Justice Kloch ruled that the advance payment exceeded the property’s
value by $120,523.55. Respondents thereafter moved before Justice
Boniello to vacate the vesting order, alleging, inter alia, that they
were fraudulently induced to stipulate to that order. Petitioner
contends on appeal that the motion should have been made to Justice
Kloch, who presided over the lengthy valuation trial, rather than to
Justice Boniello. We agree.

     Although a motion to vacate an order should generally be made to
the justice who signed the order (see CPLR 2221 [a]), an exception
exists where the Rules of the Chief Administrator of the Courts
provide otherwise (see CPLR 2221 [b]). Here, the Uniform Rules for
the New York State Trial Courts (specifically the rule entitled
“Individual assignment system [IAS]; structure),” as promulgated by
the Chief Administrator of the Courts, provide that, once a judge is
assigned to a case, that judge becomes the “ ‘assigned judge’ with
respect to that matter and, except as otherwise provided in [22 NYCRR
202.3] (c), . . . shall conduct all further proceedings therein” (22
NYCRR 202.3 [b]). None of the exceptions set forth in subdivision (c)
are applicable here. The IAS rules further provide that “[a]ll
motions shall be returnable before the assigned judge” (22 NYCRR 202.8
[a]). By the adoption of the IAS, “the CPLR 2221 requirement of
referral of motions to a Judge who granted an order on a prior motion
has been modified to provide for consistency with the mandate of the
[IAS] that all motions in a case shall be addressed to the assigned
Judge” (Ministry of Christ Church v Mallia, 129 AD2d 922, 923, lv
dismissed 70 NY2d 746; see also Billings v Berkshire Mut. Ins. Co.,
133 AD2d 919, 919-920, lv dismissed 70 NY2d 1002; Dalrymple v Martin
Luther King Community Health Ctr., 127 AD2d 69, 72-73).

     We are unable to discern from the record before us why this case
was referred to Justice Kloch rather than Justice Boniello when
respondents sought additional compensation. Having presided over the
case without objection for several years, however, we are compelled to
conclude that Justice Kloch became and remains the IAS judge. Unlike
Justice Boniello, whose involvement with the case was limited to
having signed the stipulated vesting order in July 2006, Justice Kloch
is intimately familiar with the underlying facts relevant to the
vacatur motion (see Dalrymple, 127 AD2d at 72). In fact, almost all
of the issues raised in the vacatur motion were raised in a post-trial
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                                                         CA 11-00325

motion brought before Justice Kloch, who had yet to render a decision
thereon when respondents filed the instant motion before Justice
Boniello. Under the circumstances, we conclude that the order on
appeal must be vacated, and we remit the matter to Justice Kloch as
the IAS justice to determine respondents’ motion.




Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
