New York State Court of Claims

New York State Court of Claims

JOE D. v. THE STATE OF NEW YORK, #2001-001-001, Claim No. 96950, Motion No. SP-094


Synopsis


Claimant's application for the release of an advance payment award held in an eminent domain account pursuant to EDPL 304 (E) (1) is granted; payment is stayed for thirty (30) days after claimant serves copies of this Order, with notice of entry, upon all interested parties listed in the Order to Show Cause pursuant to Court of Claims Act § 25.

Case Information

UID:
2001-001-001
Claimant(s):
JOE D. ENTERPRISES, LTD.
Claimant short name:
JOE D.
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96950
Motion number(s):
SP-094
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Flower, Medalie & MarkowitzBy: Alan Wasser, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Donald E. Shehigian, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
January 10, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant-petitioner's application for the release of an advance payment award held in an eminent domain account pursuant to EDPL 304 (E) (1): Order to Show Cause, filed December 5, 2000; Petition, dated November 14 and filed December 5, 2000, with annexed Exhibits A-G; Affirmation of Alan Wasser, Esq., dated November 14 and filed December 5, 2000; letter of County of Suffolk, dated December 6 and received December 11, 2000; Verified Answer, dated December 12 and filed December 13, 2000; and Reply Affirmation of Alan Wasser, Esq., dated December 20 and filed December 21, 2000.

On July 16, 1997, defendant State of New York ("defendant") vested title in certain property located in the Town of Islip, Suffolk County, which Joe D. Enterprises, Ltd. ("claimant") solely owned at the time of the appropriation (Petition, dated November 14 and filed December 5, 2000, with annexed Exhibits A-G ["Petition"], Exh. B [Notice of Claim]; see, Exh. A for description of parcel). Thereafter, the Comptroller of the State of New York ("State Comptroller") deposited an advance award into an eminent domain account pursuant to the procedure set forth in EDPL 304 (E) (1) (Petition, ¶ 3; Verified Answer, dated December 12 and filed December 13, 2000 ["Answer"], FIRST). The Attorney-General by letter to claimant identified the following parties as having a potential interest in the advance award: claimant, a fee interest; F & G Land Corporation, a mortgage interest; All County Block and Supply Corporation, a tenant and owner of a sign on the premises; the County of Suffolk, possible real estate tax lien; Flower & Medalie, possible attorney's lien; H. Carl McCall, depository of funds; and Eliot Spitzer, a necessary party pursuant to EDPL 304 (E) and Court of Claims Act § 23 (Petition, Exh. C). Moving by order to show cause for an order pursuant to EDPL 304 (E), claimant now seeks the entire advance payment of the condemnation award and accrued interest free of any claims (Order To Show Cause, filed December 5, 2000; Petition, ¶ 5).

The Petition explains that the first potentially interested party, F & G Land Corporation, identified as a mortgagee, executed an Assignment of Claim and Release form prepared by the Attorney-General and claims no part of claimant's condemnation award (Petition, ¶ 7, Exh. D). The second interested party, All County Block and Supply Corporation, was listed as a tenant and owner of a sign located on the appropriated property. Claimant explains, however, that the corporation is owned by the same person who owns claimant's corporation, and the owner of both corporations serves as president of both companies. Furthermore, All County Block and Supply Corporation has executed an Assignment of Claim and Release (Petition, ¶ 8, Exh. E). The interest of the next potentially interested party, the County of Suffolk for real estate taxes for the year 1996-1997, has been satisfied (Petition, ¶ 9, Exh. F; letter of County of Suffolk, dated December 6 and received December 11, 2000). The next identified interested party is the law firm representing claimant, Flower & Medalie. The firm has enclosed an affirmation stating that its retainer agreement with claimant contemplates attorneys' fees based on a percentage of sums recovered in excess of the advance payment; therefore, there is no attorneys' lien on the advance payment (Petition, ¶¶ 13-14, Affirmation of Alan Wasser, Esq., dated November 14 and filed December 5, 2000). The State Comptroller's interest is only that of the depository of the funds for the advance payment; and the Attorney-General's interest is that of a statutorily required party pursuant to EDPL 304 (E) (1) and Court of Claims Act § 23.

Although not included on the Attorney-General's list of potentially interested parties (Petition, Exh. C), claimant identifies the New York State Tax Commission ("Tax Commission") for possible franchise taxes owed by F & G Land Corporation, claimant's predecessor in interest (Petition, ¶ 10). Claimant includes a letter from the State Department of Transportation, which lists a number of closing papers that were to be executed before any payment for the appropriated land could be made (Petition, Exh. G). The Petition indicates that in order for claimant to have established clear title to the condemnation award, the franchise taxes of claimant's predecessor for the period ending December 31, 1988 must have been paid, or a release must have been executed by the Tax Commission (Petition, ¶ 11, Exh. G). Petitioner also states that it seeks to implead the Tax Commission in order for it to make any claim that it may have by reason of outstanding franchise taxes owed by F & G Land Corporation (Petition, ¶ 12). An affidavit of service attached to the Petition indicates that the Tax Commission was served with a copy of the Order to Show Cause, Petition and Exhibits on November 28, 2000, as were all identified potentially interested parties. The Tax Commission, however, has not responded.[1]

The Petition and supporting Exhibits demonstrate the apparent absence of any superior interest to the advance payment funds and the affidavits of service filed herein show that all parties certified by the Attorney-General as having a potential interest in the fund have been served; therefore, the Court, having obtained jurisdiction, hereby grants claimant's application. The Comptroller is directed to pay the balance on deposit in the Eminent Domain Account to claimant. Payment is stayed for thirty (30) days after claimant serves copies of this Order, with notice of entry, upon all interested parties listed in the Order to Show Cause pursuant to Court of Claims Act § 25.


January 10, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
The Court is cognizant of the fact that Court of Claims Act § 23 required the order to show cause to allow 30 days from service of the order for the parties to respond. Thus, despite the earlier listed return date, the Court has accepted and considered all papers submitted in this special proceeding up to January 10, 2001, well beyond the statutory 30 days. As to defendant's objection that the proceeding is not returnable in the district where the appropriated property is located (Answer, ¶ 6), as Presiding Judge, I maintain a New York calender as well as an Albany calender. Recent retirements have required this proceeding to be reassigned, and the fact that it was returnable in Albany, rather than from my office in New York, merely reflects an attempt on the Court's part to expedite the proceeding and, in any event, makes no difference for purposes of resolving the merits.