New York State Court of Claims

New York State Court of Claims

LITTWIN v. THE STATE OF NEW YORK, #2001-029-116, Claim No. 100979, Motion No. M-64097


Synopsis


Appropriation - EDPL Section 505(B) interpleader of a party that may have an interest in the appropriated parcel.

Case Information

UID:
2001-029-116
Claimant(s):
C. STUART LITTWIN, As Executor and Testamentary Trustee Under the Last Will and Testament of CHARLES LITTWIN
Claimant short name:
LITTWIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100979
Motion number(s):
M-64097
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Birbrower, Montalbano, Condon & Frank, P.C.By: Richard H. Sarajian, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Donald E. Shehigian, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 13, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The State moves for an order pursuant to EDPL § 505 (B) directing the interpleader of Matthew Sasso, Peter Maroccia, Ronald Tschaar and T.S.M. Associates in this appropriation matter. By map filed in the Rockland County Clerk's Office on August 29, 1996 the State acquired Tax Map Parcel 163-D-2.01. According to the affirmation of Gary von Bieberstein, a Principal Attorney in the Real Property Bureau of the Attorney General's Office, attached to the State's motion the record owner of Tax Parcel 163-D-2.01 according to assessment information is Charles Littwin (Affirmation Paragraph 2). Mr. von Bieberstein further states:

"My further review of the title to Tax Parcel 163-D-2.01 revealed that a RPAPL Article 15 action affecting the subject property had been filed. On May 27, 1993, Matthew Sasso, Peter Maroccia and Ronald Tschaar commenced an action to determine a claim to real property against Charles Littwin by filing a summons and complaint in the Rockland County Supreme Court, Index No. 92-3208. The complaint states that the plaintiffs were lessees, and later owners, of the adjacent parcel, Tax Parcel 163-D-2 and that they had been in possession of Tax Parcel 163-D-2.01 since September 1976. The complaint alleges various acts of ownership and possession and that during this period of possession neither Littwin nor his predecessors possessed the premises under any claim of title. A copy of the complaint is attached hereto as Exhibit D. A review of the relevant court records completed in July 2001 be the law department's title searchers indicated that the Article 15 action has not been discontinued or withdrawn.


My examination of title for Tax Parcel 163-D-2.01 also disclosed that Matthew Sasso, Pater Maroccia and Ronald Tschaar conveyed their interest in the adjacent premises, "together with the appurtenances and all the estate and rights of the party of the first part in and to said premises:" to T.S.M. Associates by deed dated November 17, 1994 and recorded on December 16, 1994 in Liber 729 Land Records page 3618, raising the possibility that an interest in Tax Parcel 163-D-2.01, as asserted in the above referenced action, was created in T.S.M. Associates. A copy of said deed is attached hereto as Exhibit E." (Affirmation Paragraphs 3 and 4)


Due to the fact that Sasso, Maroccia and Tschaar have asserted an ownership interest in the subject parcel and by reason of the possible conveyance of that interest to T.S.M. Associates, Mr. von Bieberstein requested that claimant obtain releases from Sasso, Maroccia, Tschaar and T.S.M. Associates of any interest they may have in the property and claimant has not been able to obtain such releases (von Bieberstein Affirmation Paragraph 5).

The State asserts that because of the competing claim of ownership it has been unable to authorize payment for the appropriation even though a tentative settlement with claimant exists. The State requests interpleader of Sasso, Maroccia, Tschaar and T.S.M. Associates so that the Court can determine the rightful owner of the subject parcel.

The State served the motion papers upon claimant and claimant has not submitted any opposition papers.

Both the Court of Claims Act and the EDPL provide that if there are any apparent liens or encumbrances on the appropriated property or there is uncertainty as to how the appropriation award shall be apportioned, the Court, upon motion, shall interplead anyone claiming or imputed to have such a claim or interest (see EDPL § 505 (b); Court of Claims Act § 22 (1); Owasco River Railway, Inc. v State of New York, 181 AD2d 665).

We conclude that the State has established that there is uncertainty as to ownership of the subject parcel requiring interpleader of Sasso, Maroccia, Tschaar and T.S.M. Associates. The State's motion is, therefore, granted. The State is directed to serve this order of interpleader upon Sasso, Maroccia, Tschaar and T.S.M. Associates by certified mail, return receipt requested and regular mail (see EDPL § 505 [B]). Pursuant to EDPL § 505 (B), the above-named parties shall, within 120 days from the date of service, file a claim independently of this claim. If the interpleaded parties fail to file such independent claim, they may not thereafter file such independent claim (EDPL § 505 [B]).

The following papers were read on defendant's motion for interpleader pursuant to EDPL § 505 (B):

Papers Numbered


Notice of Motion, Affirmation of

Donald E. Shehigian, Affirmation of
Gary von Bieberstein and Exhibits Attached 1


Filed Papers: Claim


November 13, 2001
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims