Michael R. Wright Chief Assistant County Attorney, Broome County
Reference is made to your inquiry as to whether the Petition and Notice of Petition (EDPL § 402, [B]; CPLR 402, 403) shall be filed in the office of the County Clerk or Register at the same time as the Notice of Pendency referred to in EDPL § 402 (B).
As you indicate, Rule 6511 of the CPLR provides that the complaint [or petition, CPLR 105] shall be filed with the notice of pendency. (See also 1974 Opinion of the Attorney General pp. 187, 188, and cases there cited; and Siegel: New York Practice, West Publishing Co. § 335, p. 409.)
You recognize in your inquiry that § 703 of the EDPL makes the provisions of the CPLR generally applicable to eminent domain proceedings. This is further emphasized by the remarks of the State Commission on Eminent Domain set forth at page 58 of its 1974 Report submitting its revised Eminent Domain Procedure Law bill to the Legislature, as follows:
"Comment: § 703. Throughout the EDPL, reference has been made to the CPLR. As much as has been practical, the procedure in the EDPL has been coordinated with applicable provisions of the CPLR. The purpose is to obtain uniformity."
The comment of the commission is consistent with the original suggestions in its 1971 report, which included a recommendation for one uniform simplified procedural code (subsequently enacted as the EDPL) to replace the multiplicity of procedures then in existence.
Your attention is also called to subdivision 3 (c) of EDPL § 402, which calls for presentation to the Court of a verified petition setting forth:
(c) a description of the real property to be acquired and its location, either by metes and bounds of each individual parcel, or section, block and lot number, and by reference to the acquisition map and notice of pendency attached to the petition; (Underscoring supplied.)
Accordingly, it is my opinion that the Notice of Pendency required by EDPL § 402 (B) should be filed with the County Clerk (or Register) at the same time as the Petition referred to in said section and the Notice of Petition (CPLR 403) are filed.