Goldstein v. New York State Urban Development Corp.

Read, J. (concurring).

I reach the same result as the majority, but for a different reason: the 30-day time limit in Eminent *531 Domain Procedure Law § 207 (A) is a condition precedent for judicial review of a condemnor’s decision to acquire property by eminent domain. As a result, CPLR 205 (a) tolling plays no role in this case. And even if CPLR 205 (a) applied, it would not help petitioners because the Eminent Domain Procedure Law § 207 (C) (1) claim in their federal lawsuit was dismissed on the merits. In short, this lawsuit—which was commenced more than 18 months after the New York State Urban Development Corporation, doing business as Empire State Development Corporation (ESDC), published its determination and findings—is jurisdictionally deficient.

Relevant Provisions of the EDPL

Section 207 of the Eminent Domain Procedure Law, entitled “Judicial review,” establishes the way by which New York courts must review a condemnor’s decision to acquire property by exercise of the power of eminent domain. Under section 207 (A), anyone seeking judicial review of a condemnor’s findings and determination concerning a proposed public project

“may seek judicial review thereof by the appellate division ... in the judicial department embracing the county wherein the proposed facility is located by the filing of a petition in such court within thirty days after the condemnor’s completion of its publication of its determination and findings pursuant to section [204] herein” (emphasis added).

In order to further expedite a final decision, section 207 (A) also calls for the prompt delivery of the transcript of the public hearing on the condemnation and the determination and findings to the court; specifies that the proceeding in the Appellate Division “shall be heard on the record without requirement of reproduction”; and mandates that if the proposed public project “is located in more than one judicial department [the] proceeding may be brought in any one, but only one of such departments and all such proceedings with relation to any single public project shall be consolidated with that first filed.”

Section 207 (B) makes the Appellate Division’s jurisdiction exclusive and its judgment and order final subject to our review “in the same manner and form and with the same effect as provided for appeals in a special proceeding.” Further, “[a]ll such proceedings shall be heard and determined by the appellate division . . . and by the court of appeals, as expeditiously as possible and with lawfiil preference over other matters.” (Id.) *532 Section 207 (C) states that “[t]he court shall either confirm or reject the condemnor’s determination and findings,” and limits the scope of review to four grounds: (1) whether the proceeding conformed with the Federal and State Constitutions (see EDPL 207 [C] [1]); (2) whether the condemnor’s statutory jurisdiction or authority encompassed the proposed acquisition (see EDPL 207 [C] [2]); (3) whether the condemnor’s procedures complied with the provision in article 2 of the Eminent Domain Procedure Law and article 8 of the Environmental Conservation Law (State Environmental Quality Review Act [SEQRA]) (see EDPL 207 [C] [3]); and (4) whether “a public use, benefit or purpose will be served by the proposed acquisition” (see EDPL 207 [C] [4]).

Next, section 208 of the Eminent Domain Procedure Law, entitled “Jurisdiction of courts,” states that

“[e]xcept as expressly set forth in [Eminent Domain Procedure Law § 207], and except for review by the court of appeals of an order or judgment of the appellate division ... as provided for therein, no court of this state shall have jurisdiction to hear and determine any matter, case or controversy concerning any matter which was or could have been determined in a proceeding under this article” (emphasis added).

Finally, section 703, entitled “Application of CPLR,” states that “[t]he civil practice law and rules shall apply to practice and procedure in proceedings under [the Eminent Domain Procedure Law] except where other procedure is specifically provided by [the Eminent Domain Procedure Law] or rules governing or adopted by the appropriate court” (emphasis added). Concomitantly, section 705, entitled “Applicability with respect to inconsistent laws,” provides that “[notwithstanding any inconsistent provisions of law, general or special, the provisions of this law shall be controlling and . . . any interest in real property subject to acquisition shall be acquired pursuant to the provisions of this law.”

Thus, section 207 forges a comprehensive regime for judicial review of a condemnor’s decision to acquire property by eminent domain, each feature of which places a premium on speed: any challenge must be initiated in the Appellate Division, bypassing Supreme Court; only a limited number of carefully spelled out issues may be reviewed; the challenge must be brought within *533 30 days after the condemnor’s determination and findings are published; the usual requirement for reproduction of the record is dispensed with; any subsequent, but still timely, challenge must be consolidated with the first-filed lawsuit so as to achieve a single, unified disposition; and these cases are to be handled as expeditiously as possible and afforded a preference. Section 208 drives home the exclusive nature of the section 207 regime by divesting the state courts of jurisdiction to decide matters encompassed within it in any other way. And then sections 703 and 705 insure that no provision of the CPLR may trump the section 207 regime: section 703 specifies that the CPLR does not apply “where other procedure is specifically provided by [the Eminent Domain Procedure Law]”—and the section 207 regime surely qualifies as “other procedure”—and section 705 states that “[notwithstanding any inconsistent provisions of law”—which would, of course, include any inconsistent provisions of the CPLR—“the provisions of [the Eminent Domain Procedure Law]”—which include the section 207 regime—“shall be controlling.” In sum, section 207, especially when read in context with sections 208, 703 and 705, creates an exclusive and comprehensive program for judicial review of a condemnor’s decision to acquire property by eminent domain, which is not susceptible to alteration by the CPLR. The Eminent Domain Procedure Law’s legislative history reinforces what these provisions plainly say.

Legislative History

Reform of New York’s fragmented eminent domain laws was spurred in large part by concern for condemnees. In his memorandum supporting a commission to evaluate eminent domain laws and procedures, Governor Nelson A. Rockefeller noted the “delay, confusion and frustration” encountered by condemnees in resolving their claims for just compensation (Interim Rep of State Commn on Eminent Domain, Feb. 1, 1971, at 22).

In the first four months after its organization, the State Commission on Eminent Domain held public hearings. Based on these and other research, the Commission issued an interim report on February 1, 1971, which continued to focus on condemnees’ needs as the reason for streamlining judicial oversight of takings using eminent domain (see id. at 8). In addition, the report introduced a proposal, which was provided by a participant at a public hearing, to have one court review all condemnation proceedings {id. at 27).

*534 The Commission held further meetings, public hearings, and informal hearings with interest groups, and also analyzed eminent domain procedures then in practice and studied takings within New York. It discovered that litigation continued for approximately two years after the filing of the condemnor’s map (an act that initiated vesting proceedings) (1971 Rep of State Commn on Eminent Domain, Feb. 1, 1972, at 85 [1971 Report]). The Commission also looked at how eminent domain worked in other countries, and noted that, in the Federal Republic of Germany, judicial review “must normally be sought by petition within one month after the decision” at issue was served on a petitioner (id. at 125). But different courts reviewed different challenges which “led to an often troublesome bifurcated system of judicial review” (id.). The Commission observed that “[t]o avoid resulting problems,” Germany created a board of judges from different courts to review challenges to condemnation decisions (id. at 125-126).

In the 1971 Report, the Commission recognized that, as a general rule, the “existing eminent domain statutes in New York [did] not provide for an overall review of a project’s beneficial and detrimental effects” (id. at 16). As desirable as such overall review might be, however, the Commission was also worried about the deleterious effects of prolonged litigation:

“Nor should the construction of public projects be brought to a standstill, as the need for public projects in an advanced urban society is essential. In addition to the problem of a legal blockade of a project, is the fact that the resort to the courts for a review of a project’s possible adverse effects results in a lengthy period of delay before ultimate deposition. The delay means that if a project is approved, construction costs will have greatly increased over the estimate, or if disapproved, alternative solutions must then be proposed, delaying the fulfillment of the need. During this delay the property owner often neglects his property, causing its decline in value and utility” (id.; see also id. at 25 [“It is a nationwide phenomenon that there is an increased use of the judicial process by opponents of various public projects. If this practice broadens and continues, it may very well result in the suspension of many public projects”]).

From this point, the Commission sought to formulate new rights *535 to judicial review of takings, but to do so in a such a way as to avoid burdening public projects with undue delay.

The Commission recommended that judicial review be limited to consideration of the condemnor’s compliance with the statutory procedure. As a counterweight to limited judicial review, the Commission made two recommendations. First, the new statute should provide adequate process in which the condemning agency must review the project (id. at 25 [“It is felt that the procedure recommended by the Commission will create (adequate project review), and accordingly, the Commission recommends that only a limited right to seek court review be established. The basis of judicial scrutiny would be limited to ensure that the condemnor has complied with the procedural requirements, such as the extensive notice provisions. Review of the wisdom of the decision or basis therefor is not permitted”]). This review by the condemning agency would be followed by a second review undertaken by a new independent Board of Review. Second, public participation early on in a project’s planning process should be increased (id. at 16-20 [“by removing the surprise element and entering into a partnership of planning, the natural resistance to a project may be lessened. If so, court contests of the decision to proceed with the project may be eliminated or cut down to a reasonable number” (id. at 20)]).

The Commission also made two recommendations regarding the hearing of a condemnee’s claims. First, it proposed that the trial court be authorized “in its discretion, to order the trial of all claims arising from the same project to be tried in one proceeding” (id. at 37). This would, in part, “enable the court to hear all evidence relating to land value in a project in a relatively brief period of time. . . . [Hearing all evidence at once] will aid the court in reducing the trial time needed for each parcel” (id.). Second, the Commission proposed that appeals of both questions of fact and law be heard by the Appellate Division, while the Court of Appeals would hear appeals on matters of law only and by permission (id. at 38).

To accomplish these recommendations, the Commission provided study drafts of legislation (id. at 46-70). Within 30 days of the condemning agency’s mailing of its determination and findings, a condemnee could seek the second review of the determination by the Board of Review (id. at 54). A condemnee could additionally seek judicial review of any action or determination under a proposed section 210, a predecessor to Eminent *536 Domain Procedure Law §§ 207 and 208. This section required the judicial procedure to

“be in accordance with [CPLR] Article 78 . . . provided, however, that:

“a) the time within which the proceeding under Article 78 must be commenced shall be thirty (30) days after the Board has mailed its decision.

“b) judicial review shall be available only to require compliance with this Act or the constitution of the State of New York or the United States. Excepting, as provided in this section, no court shall have jurisdiction to review any proceeding, determination, finding, decision or action under this Article” (id. at 56).

The draft also contained a substantively similar predecessor to Eminent Domain Procedure Law § 703, which required application of the CPLR to proceedings except where the Eminent Domain Procedure Law provided other procedures. The Commission explained that this reference to the CPLR as a default mechanism was made “for purposes of uniformity” (State Commn on Eminent Domain, Memorandum RE: The Commission’s Proposed Eminent Domain Procedure Act, Mar. 1973, at 33 [1973 Memorandum]).

In its next report, the Commission “continue[d] to endorse one tribunal to hear acquisition claims” (1972 Rep of State Commn on Eminent Domain, Mar. 1, 1973, at 7 [1972 Report]), but now recognized that this tribunal must be an existing court organization because “the magnitude of establishing this agency seemingly lies beyond the scope of the Commission” (1973 Memorandum at 12). Thus, this draft of proposed legislation eliminated the Board of Review. As a result, the Commission stated that the condemnor’s decision “will be subject to judicial review in the form of an article 78 proceeding and not a separate administrative hearing” (id.).

In the 1973 draft, the Commission encouraged participation in public hearings by limiting judicial review to condemnees who “appear[ed] in a public hearing conducted by a condemnor” (1972 Report at 11; see also 1973 Memorandum at 13 [“Limiting standing to commence judicial review to those who appeared at the first opportunity, while also limiting the scope of review, should significantly reduce delay in final disposition”]). This draft also required challenges to be governed by CPLR article *537 78 and limited judicial review to four grounds, three of which are now contained in Eminent Domain Procedure Law § 207 (1972 Report at 12). The 30-day—or any other—limitation on filing was dropped from this version {id. at 11-12). In comments on these two sections, the Commission noted that “[Litigation has delayed a final determination of whether the project should proceed. Limiting standing to commence judicial review to those who appeared at the first opportunity, and also limiting the scope of review, delay in final disposition may be reduced” {see id. at 12). In this draft, the predecessor of Eminent Domain Procedure Law § 703 was substantively the same as in current law. As the Commission commented, “[a]s much as has been practicable, the procedure in eminent domain matters has been coordinated with applicable provisions in the CPLR. The purpose is to obtain uniformity” {id. at 25).

In its final report, the Commission explained that instead of the Board of Review, it had “included within [the] proposed Act, only the condemnor’s hearing which will be subject to the scrutiny of an expedited judicial review patterned after an article 78 proceeding” (1973 Rep of State Commn on Eminent Domain, Mar. 1, 1974, at 16). The draft Eminent Domain Procedure Act contained judicial review as now found in Eminent Domain Procedure Law § 207, in which the Appellate Division has exclusive jurisdiction and the scope of review is limited to specified issues {id. at 38-39). The 30-day limitation on challenges was reinstated {id.). The Commission’s comments to this section repeated the statement in the 1971 Report that increasing litigation was a worrisome “nationwide phenomenon” {id. at 39), and stated that

“[i]t is felt that the procedure included in this article will create an expeditious review, and additionally, a limited right to seek court review is established . . .

“This section provides the exclusive remedy for judicial review of an Article 2 determination in an accelerated procedure patterned after the Public Service Law, Article VII, Sections 128 and 129 [governing siting of utility transmission facilities]” {id. at 39-40).

In comments to the section now found in Eminent Domain Procedure Law § 208, the Commission again emphasized that this procedure was to be the exclusive remedy:

“This section has been included to ensure that in a *538 proceeding under Article 2, the appellate review provided by section 20[7] shall be the exclusive remedy. The matters contained in the review shall be solely for the appellate division, and the proceeding must be instituted 30 days after the condemnor’s publication and mailing of its determination and findings. It is the intent of sections 20[7] and 20[8] to achieve the procedural result attained in Consolidated Edison Co. of New York, Inc. v. New York University, 74 Misc 2d 923 (1973). There, the court in discussing Public Service Law, Art. VII, §§ 128, 129, held that subd. 1 of § 128 which provided that such proceeding for judicial review of an order of the Public Service Commission ‘shall be brought in the appellate division of Supreme Court of the state in the judicial department embracing the county wherein the proposed facility is located,’ clearly requires the judicial review proceeding to be brought in the appellate division” (id. at 40).

The draft bill was then approved by the Legislature. Additionally, out of concern that the requirements now found in Eminent Domain Procedure Law §§ 207 and 208 would permit judicial review of environmental effects, which it was feared would negatively affect the State’s ability to provide for utilities, the Legislature then approved an act omitting those two sections from the bill (see Letter from Law Offices of Lexow and Jenkins, May 6, 1974, Veto Jacket, Veto 218 of 1974, at 185). Letters contained within the Veto Jacket reflect worry that this omission of present-day Eminent Domain Procedure Law §§ 207 and 208 would unintentionally subject condemnation decisions made pursuant to the Eminent Domain Procedure Law to judicial review under CPLR article 78. One letter, for example, written on behalf of utility companies, warned:

“Rather than making the hearings non-appealable, as was the apparent intent [of omitting the provisions now contained in Eminent Domain Procedure Law §§ 207 and 208], the net effect of deleting these two sections would appear to be to make appeals subject to Article 78 of the CPLR, since the CPLR is made applicable where no other procedure is specifically provided (Section 703). This creates broader grounds for review than existed in Sections 20 [7] and 20[8] of the Act, and thus the effect is quite *539 opposite the apparent intent.” (Letter from Lexow and Jenkins, May 6, 1974, Veto Jacket, Veto 218 of 1974, at 185-186; see also Mem of Attorney General Louis J. Lefkowitz, May 31, 1974, Veto Jacket, Veto 218 of 1974, at 5; Mem of Power Auth of State of NY, Apr. 24, 1974, Veto Jacket, Veto 218 of 1974, at 167; Letter from Port Auth of NY and NJ, May 29, 1974, Veto Jacket, Veto 218 of 1974, at 207.)

Based on these considerations, Governor Malcolm Wilson vetoed both the Eminent Domain Procedure Law and the chapter amendments.

The following year, the bill was reintroduced with those sections now contained in Eminent Domain Procedure Law §§ 207 and 208 restored. Once again, letters to the Governor evidence that the CPLR was not intended to apply to the procedures established in sections 207 and 208. In comparing judicial review of proceedings exempt from the procedural requirements of Eminent Domain Procedure Law article 2, the Long Island Lighting Company stated, “[i]n such judicial review [of exempt proceedings], the entire range of CPLR remedies would be available to the condemnee . . . , unlike the situation following an Article 2 hearing, where review is limited” (Letter from Long Island Lighting Company, July 17, 1975, at 2, Veto Jacket, Veto 170 of 1975). Governor Hugh L. Carey vetoed the bill, citing numerous unrelated revisions needing to be made (see Governor’s Veto Mem, Veto Jacket, Veto 170 of 1975). The Governor approved the bill upon its reintroduction in 1977.

In the years after the Eminent Domain Procedure Law went into effect, the Legislature considered potential alterations. An amendment threatening to lengthen judicial review was unsuccessful, while a measure to consolidate Eminent Domain Procedure Law and SEQRA review was adopted. First, in 1980 Governor Carey vetoed a bill that, in addition to making “minor technical changes,” amended Eminent Domain Procedure Law § 208 by extending to lower courts jurisdiction for judicial review of public use (Governor’s Veto Mem, Veto 56, 1980 NY Assembly Bill A1969, 1980 NY Legis Ann, at 436). The Governor noted that state agencies “strenuously object[ed]” to the extension of jurisdiction because “it will serve to substantially delay condemnation proceedings and will lengthen the judicial review process to a point where, in some cases, acquisition of property by the State may become impractical and prohibitively costly” (id.). A later amendment, sans the amendment to section 208, *540 instituted the technical changes to the Eminent Domain Procedure Law, and was approved (see Mem of NY Dept of Law, June 11, 1982, Bill Jacket, L 1982, ch 356, at 9).

In 1991, an amendment to Eminent Domain Procedure Law § 207 was approved, which expanded judicial review under the section to consider SEQRA compliance (see EDPL 207 [C] [3]). This amendment aimed to “streamline the procedure for judicial review of’ a condemnor’s decision by allowing consideration of both SEQRA and the Eminent Domain Procedure Law in a single proceeding (see Attorney General’s Legislative Program Mem, Bill Jacket, L 1991, ch 356, at 5).

Conditions Precedent and CPLR 205 (a)

To avert the consequences of their decision to forgo bringing this lawsuit in the Appellate Division within 30 days of ESDC’s determination and findings, petitioners rely on CPLR 205 (a). CPLR 205 is entitled “Termination of action,” and subdivision (a), designated “New action by plaintiff,” provides as relevant that

“[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

Petitioners concede that the six-month toll in CPLR 205 (a) is unavailable to them, however, if the 30-day time limit in Eminent Domain Procedure Law § 207 (A) is a condition precedent to suit.

Our principal case discussing conditions precedent is Romano v Romano ( 19 NY2d 444 [1967]). There, the wife alleged that her consent to marriage was induced by the husband’s fraudulent misrepresentations and that she left him upon discovery of the fraud, although she did not bring an action for annulment until 14 years later. The husband defaulted and never appeared in the action. The trial court nonetheless dismissed the *541 complaint on the ground that the three-year period fixed for the commencement of an action for annulment set out in Domestic Relations Law § 140 (e) was a part of the statutory cause of action itself.

We affirmed, reasoning that where a statute created a cause of action and attached a time limit to its enforcement, the time was an ingredient of the cause. As a result,

“[t]his statutory provision could be seen as a sort of condition precedent, . . . probably more accurately described as . . . [a] special statutory limitation[ ] qualifying a given right in which time is made an essence of the right created and the limitation is an inherent part of the statute . . . out of which the right in question arises” (id. at 447 [internal quotation marks omitted]).

We subsequently held that CPLR 205 (a) does not extend a time limit that is a condition precedent to suit (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375 [1999] [one-year time limit for suits against Port Authority in section 7107 of McKinney’s Unconsolidated Laws of New York (L 1950, ch 301, § 7) is a condition precedent and therefore may not be extended by CPLR 205 (a)]).

The 30-day time limit in section 207 (A) is exactly the type of condition precedent described in Romano . When the Legislature adopted the Eminent Domain Procedure Law in 1977, it created a uniform procedure for pre-acquisition hearings before administrative agencies, which afforded potentially affected property owners new opportunities to have their objections or concerns aired and addressed before any taking occurred (see EDPL 201, 202, 203, 204). As a tradeoff for these newly created rights for condemnees—the exercise of which inevitably prolonged the acquisition timetable—the Legislature in section 207 (A) incorporated a 30-day time limit as one of several measures intended to simplify and speed up any subsequent judicial review of the condemnor’s determination and findings. Thus, the 30-day time limit is a condition precedent not susceptible to tolling by CPLR 205 (a). Moreover, unlike the statutes involved in any other case where the question of whether a time limit is a condition precedent or a statute of limitations has arisen, the Legislature specifically preempted the CPLR where the Eminent Domain Procedure Law provides its own procedure, as it does in section 207 (A) (see EDPL 703, 705).

*542 The majority argues, though, that the Legislature’s intent when it enacted article 2 of the Eminent Domain Procedure Law is “practically beside the point” because petitioners would have had the right under federal law to bring their section 207 (C) (1) claim in state court by virtue of 28 USC § 1367 (d) (majority op at 522). Section 1367 (d) provides generally for the tolling of statutes of limitations with regard to state law claims during their pendency in federal court and “for a period of 30 days after [dismissal in federal court] unless State law provides for a longer tolling period.”

Petitioners first mentioned 28 USC § 1367 (d) in their reply brief to us. 1 We generally do not opine on such newly raised issues because, without the benefit of briefing and oral argument from both parties, we are not fully informed. Further, considerations of fairness to the litigants come into play (see Misicki v Caradonna, 12 NY3d 511, 519 [2009]). I would also note that the United States Supreme Court has, to date, approached section 1367 (d) cautiously, particularly as it pertains to pendent claims asserted against state defendants (see Raygor v Regents of Univ. of Minn., 534 US 533, 549 , 549 n 2 [2002, Ginsburg, J., concurring] [noting “the mist surrounding (section) 1367,” and the “well-reasoned commentary” on the supplemental jurisdiction statute’s flaws]).

In any event, even if 28 USC § 1367 (d) tolls an Eminent Domain Procedure Law § 207 (C) (1) claim asserted against ESDC, 2 these petitioners would not be helped (which may be why they never emphasized in this provision) because they did not commence this lawsuit within 30 days after the federal District Court dismissed their section 207 (C) (1) claim. 3 Petitioners waited until August 1, 2008 to refile their section *543 207 (C) (1) claim. This was 13 months—not 30 days—after the District Court dismissed this claim on June 6, 2007, and exactly six months after February 1, 2008, when the Second Circuit affirmed the District Court’s judgment of dismissal. 4 And further assuming the availability of CPLR 205 (a) (that is, assuming that the 30-day limit in Eminent Domain Procedure Law § 207 [A] is a statute of limitations and therefore qualifies as a “longer tolling period” under state law within the meaning of 28 USC § 1367 [d]), the delay would be reduced from one year to seven months. Whether seven months or one year, these delays are significant, and they cannot be chalked up simply to the availability of a federal forum.

*542 “[t]he dismissal moment should be taken to be the moment of dismissal in the district court. Even if an appeal is taken to a court of appeals from the district court dismissal, the party whose *543 claim has been dismissed under § 1367 does best to commence the state action within the prescribed time measured from the district court dismissal, and not from some later appellate affirmance of it. . . This seems to be the safest course until there is a definitive federal ruling about whether the 30-day period may be measured from an appellate determination. The matter is not addressed by the statute” (Siegel, Commentary on 1988 Revision, 28 USCA § 1367, at 767).

The Federal Action and CPLR 205 (a)

In their federal court action, petitioners pleaded a claim under Eminent Domain Procedure Law § 207 (C) (1) to assert a violation of the Takings Clause of the Federal Constitution. The relevant claim stated that “[t]he Determination and Findings [of ESDC] do not conform, and result from proceedings that did not conform, with the United States Constitution” (amended complaint 1i 176, quoted in Goldstein v Pataki, 488 F Supp 2d 254 , 275 n 9 [ED NY 2007]). Defendants moved to dismiss this claim on various grounds, and the District Court referred the motion to a magistrate judge for a Report and Recommendation. The matter was briefed and orally argued before the magistrate judge, who noted that, although petitioners “assert a supplemental state law claim under New York Eminent Domain Procedure Law (‘EDPL’) § 207” (Goldstein v Pataki, 2007 WL 1695573 , *1, 2007 US Dist LEXIS 44491 , *5 [ED NY, Feb. 23, 2007]), “the Amended Complaint contains no claim under the state constitution” (id. n 5).

*544 Petitioners themselves emphasized this point in their objection to the Report and Recommendation, stating that “[t]o be sure, Plaintiffs have pled a supplemental claim under EDPL § 207. However, this putative ‘state law’ claim merely asserts that Defendants’ use of eminent domain violates the federal Constitution because it will serve no public use. No underlying state claim is pled.” The District Court accepted this argument, stating that

“no state constitutional issue seems to be at play in this case. Plaintiffs’ Section 207 (C) (1) claim is that ‘[t]he Determination and Findings do not conform, and result from proceedings that did not conform, with the United States Constitution.’ That claim does not refer to the New York Constitution” (Gold- stein, 488 F Supp 2d at 275 n 9 [citation omitted]).

On the merits, the District Court concluded that petitioners had “not sufficiently alleged that the takings at issue violate[d] the public use requirement” of the Takings Clause of the Federal Constitution {id. at 278), and so dismissed the case. Regarding petitioners’ Eminent Domain Procedure Law § 207 claim, the court declined to exercise supplemental jurisdiction because it was dismissing all the claims over which it had original jurisdiction. The District Court then dismissed the section 207 claim “without prejudice to its being re-filed in state court” {id. at 291). 5 The United States Court of Appeals for the Second Circuit followed suit, and “affirm[ed] the judgment of the district court dismissing the federal claims with prejudice and the state claim without prejudice” (Goldstein v Pataki, 516 F3d 50, 65 [2d Cir 2008]). As noted previously, petitioners filed this lawsuit exactly six months after the Second Circuit’s decision.

But because petitioners’ section 207 (C) (1) claim, which asserted violation of the Takings Clause of the Federal Constitution only, was substantively identical to their 42 USC § 1983 claim for violation of the Takings Clause of the Federal Constitution, the District Court’s dismissal of petitioners’ section 1983 claim on the merits effectively resolved their section 207 (C) (1) claim on the merits as well. “While a dismissal with prejudice clearly constitutes an adjudication on the merits, a dismissal *545 without prejudice only ‘indicates,’ as a general matter, that there has been no adjudication on the merits of the claim” (ITT Corp. v Intelnet Inti., 366 F3d 205 , 214 n 17 [3d Cir 2004]). And whether the federal courts’ dismissal of petitioners’ section 207 (C) (1) claim was “upon the merits” within the meaning of CPLR 205 (a) is a matter of state law for us to determine applying state precedents. We are not, as the majority suggests, somehow foreclosed from independently assessing this question by the federal courts’ pro forma dismissal of petitioners’ section 207 cause of action in its entirety (see n 5, supra at 544).

Further, petitioners’ subsequent filing of this Eminent Domain Procedure Law § 207 (C) (1) claim does not “serve[ ] the salutary purpose” of CPLR 205 (a), which is to “prevent[ ] a Statute of Limitations from barring recovery where the action, at first timely commenced, had been dismissed due to a technical defect which can be remedied in a new action” (United States Fid. & Guar. Co. v Smith Co., 46 NY2d 498, 505 [1979]; see also Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160 , 164 n 2 [2d Dept 1996] [stating that CPLR 205 (a) is “designed to prevent claims from being irreversibly extinguished following technical-type dismissals”]; Hakala v Deutsche Bank AG, 343 F3d 111, 115 [2d Cir 2003] [“The purpose of (section) 205 (a) is to avert unintended and capricious unfairness by providing that if the first complaint was timely but was dismissed for . . . curable reasons, the suit may be reinstituted within six months of the dismissal”]). Petitioners’ section 207 (C) (1) claim was not dismissed by the District Court because of a “technical defect” or “curable reason.” Rather, petitioners elected to assert a section 207 (C) (1) claim in their federal court action, and further chose to confine this claim to the same federal constitutional grounds that the federal court decided on the merits.

Conclusion

What has happened in this case is precisely the result that the Legislature sought to prevent when it enacted the Eminent Domain Procedure Law—the sidelining of a public project on account of prolonged litigation. The language, structure and legislative history of the Eminent Domain Procedure Law show that the Legislature was aware of the risks presented by drawn-out or piecemeal judicial disposition of challenges to a taking, and sought at every turn to reduce these risks. Moreover, nothing in the language or the purpose animating CPLR 205 (a) *546 suggests that a condemnee who intends to dispute public use on federal and state constitutional grounds may take serial bites at the EDPL 207 (C) (1) apple—first in federal court, and then in state court.

The majority counters that “serial litigation of condemnation claims is exceedingly rare” and “[t]here is no reason to suppose that serial condemnation litigation will now become the order of the day” (majority op at 523). The historical observation is accurate; the prediction may turn out to be so much judicial whistling in the dark. After all, we have now opened up and exposed for all to see a whole new strategy for determined foes of a public project to exploit.

This petition should be dismissed because it was commenced more than 30 days after ESDC’s determination and findings. The majority’s unwillingness to enforce the 30-day time limit in Eminent Domain Procedure Law § 207 (A) impairs the Legislature’s comprehensive plan for the promptest possible adjudication of a condemnor’s article 2 determination and findings, and subjects future public projects to delay above and beyond any holdups caused by the availability of the federal forum.

. Petitioners’ lawyer also alluded to an unspecified federal tolling provision in response to questioning during oral argument.

. And as discussed later, this particular Eminent Domain Procedure Law § 207 (C) (1) claim was characterized by petitioners themselves as a “putative ‘state law’ claim” because, in fact, it asserted no claim under the State Constitution. This is certainly not the situation Congress would have envisaged when it adopted 28 USC § 1367 (d) to save pendent state claims dismissed by federal judges. Presumably, Congress intended to save state causes of action that asserted a state claim; not state causes of action that asserted only a federal claim.

. In his commentary on supplemental jurisdiction, Professor Siegel advises that

. Citing Cohoes Hous. Auth. v Ippolito-Lutz, Inc. ( 65 AD2d 666 [3d Dept 1978]), Professor Siegel observes that “[w]hile the [six-month] period supplied by CPLR 205 (a) will be measured from an appellate determination if the earlier action went through an appellate stage, this applies only where an appeal was available and was in fact taken” (Siegel, NY Prac § 52, at 75 [4th ed]).

. Petitioners apparently asserted three claims within their Eminent Domain Procedure Law § 207 cause of action (their fourth cause of action): violations of sections 207 (C) (1), (3) and (4) (Goldstein, 488 F Supp 2d at 275 ). The District Court dismissed the section 207 cause of action in its entirety.