1 No. 62
The State of New York,
Appellant,
v.
The Seventh Regiment Fund, Inc.,
Respondent.
_________________________________________________________________
2002 NY Int. 59
June 4, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Melanie L. Oxhorn, for appellant.
Philip M. Chiappone, for respondent.
_________________________________________________________________
KAYE, CHIEF JUDGE:
In this hotly-contested litigation, the State alleges that defendant,
the Seventh Regiment Fund, Inc., is in wrongful possession of valuable
historic artifacts belonging to the State. The Fund maintains that the
action is time-barred. The State counters that it is immune from the
statute of limitations, and in any event that it sued soon enough
after its cause of action accrued. We reject the State's immunity
argument but hold that its accrual arguments present issues of fact
that render summary judgment improper. We therefore reverse the
Appellate Division's grant of summary judgment to the Fund.
Facts
The 107th Support Group of the New York Army National Guard, as it is
now styled, is the successor to State militia units that have existed
since the early nineteenth century. During much of its history it was
called the Seventh Regiment. Beginning in the 1870s, the regimental
Armory has been located at 643 Park Avenue in New York City, which is
also the address of the Fund, a not-for-profit corporation consisting
of veteran and active members of the Regiment.(1) The Fund was
incorporated in 1909, for the purpose of promoting and conserving the
interests of the Regiment.
The Armory houses various artifacts that the Regiment accumulated
through the years, including art works; military trophies and medals;
letters and commissions; silverware; books and flags. The parties
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
In this hotly-contested litigation, the State alleges that defendant, the Seventh Regiment
We reject the State's immunity argument but hold that its accrual arguments present issues of
The 107th Support Group of the New York Army National Guard, as it is now styled, is the
The parties agree that these memorabilia are historically significant, and worth six to ten
A bill of sale purportedly transferring to the Fund "all personal property" of the Regiment,
On its first summary judgment motion, the Fund argued that former Military Law section 244
Supreme Court assumed that the State's cause of action for spoliation of public property
rejecting both the State's argument that its claim accrued in 1996 and its "sovereign
The statutory language clearly subjects the State to the statute of limitations, with the
Construing the 1801 statute in 1820, Supreme Court concluded that the Legislature had revoked
In Vernooy, when the State sued to assert its title to historic relics salvaged from a sunken
see also Friends of Van Cortlandt Park v State of New York,, 95 NY2d 623 2001)).
The State argues, however, that legislation creating the bureau of war records evinces a
Recognizing the special vulnerability of State property, the Legislature provided a ten-year
The Fund argues that because Civil Practice Act article 76 did not provide a discovery rule,
Opinion by Chief Judge Kaye.
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