TARTAN v. THE STATE OF NEW YORK, #2002-030-509, Claim No. 95056, Motion No.
Application by non-party to intervene pursuant to §1012 CPLR in a
presumptively concluded appropriation proceeding denied. Interest claimed by
proposed intervener not extant at time of taking. Interest based on contract
between private parties, not the State Defendant. No application by a "party"-
either the State or Claimant - for interpleader pursuant to §505 EDPL nor
would one lie.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
CORLETO & ASSOCIATES, P.C.
By: KENNETH L. ROBINSON, ESQ.
AND SOLOMON & WEINBERG
By: STEVEN SINATRA, ESQ.
For Proposed Intervenor, Leon Petroleum, LLC
CARL S. LEVINE & ASSOCIATES. P.C.By: CARL S. LEVINE
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBy: ROSE F. LOWE, ASSISTANT ATTORNEY GENERAL
March 19, 2002
See also (multicaptioned
The following papers numbered 1 through 8 were read on this application to
intervene by a non-party in a presumptively settled appropriation
1,2,3 Order to Show Cause; Supporting Affidavit of Allen K. Leon; Supporting
Affidavit of Carl S. Levine, Esq., Counsel for proposed Intervenor, and
4 Affidavit in Opposition by Kenneth L. Robinson, Esq., Counsel for Claimant,
and accompanying exhibits.
5 Affirmation of Rose Farrell Lowe, Esq, Assistant Attorney General for
Defendant, and accompanying exhibit
6 Reply Affidavit of Carl S. Levine, Esq.
7 Additional Affidavit in Opposition of Kenneth L. Robinson, Esq.
8 Affirmation of State Defendant in Response to Opposition and Additional
Opposition of Tartan Corp.
After carefully considering the papers submitted, stipulations placed on the
record on November 11, 2001 and December 17, 2001, respectively, oral argument
by Counsel for the Proposed Intervenor, Counsel for Claimant, and Counsel for
the Defendant, heard on January 14, 2002; and the applicable law, the
application is disposed of as follows:
The underlying claim is one for consequential damages resulting from the
partial appropriation of certain real property located at the northwest corner
of Jerusalem Avenue and Newbridge Road, in North Bellmore, New York, as well as
the loss of certain temporary easements. The claim was filed in the Office of
the Chief Clerk on or about November 4, 1996. The vesting date occurred on or
about March, 1994.
A trial was scheduled to commence on November 8, 2001. On or about November 8,
2001 a Stipulation was placed on the record settling the claim between Tartan
Corporation (hereafter Tartan), the Claimant herein, a tenant of the fee owner
at the time of vesting, and Defendant, in the gross sum of $195,612.00 less the
advance payment, inclusive of all interest due Claimant through December 1,
2001. Additionally, Claimant waived any attorney's fees. Counsel of record for
Claimant confirmed his consent to the settlement in a writing directed to the
Assistant Attorney General, and furnished it to the Court.
On November 19, 2001 this Court signed an Order to Show Cause presented by
Leon Petroleum, LLC, (hereafter Leon) the proposed intervenors herein, directing
Claimant and Defendant to show cause why an Order should not be granted herein,
"pursuant to §1012(a) Civil Practice Law and Rules and §505 Eminent
Domain Procedure Law permitting Leon Petroleum, L.L.C. to intervene... [in this
claim] and to succeed to all rights of Claimant in this proceeding within one
hundred and twenty (120) days from the date of the order permitting intervention
and thereafter permitting Leon Petroleum, L.L.C. to participate in the
determination of any award...." The grounds asserted were that Leon would be
"adversely affected" by any judgment, thus tracking the language of §
1012(a)(3) Civil Practice Law and Rules. A stay was imposed.
With respect to the Order to Show Cause, a stipulation was placed on the
record, with all counsel present agreeing - including counsel for the proposed
intervenor - on December 17, 2001. That stipulation provided that the Court
lift the stay to authorize the New York State Department of Transportation to
deposit the settlement amount into a New York State short-term investment pool
fund, or "STIP"; authorize Tartan and the State to execute the agreement of
adjustment settling the claim for the settlement agreement amount; and, upon
submission of the agreement of adjustment by the Claimant to the State of New
York, Office of the Comptroller, the Comptroller be authorized to deposit the
settlement amount into a New York State short-term investment pool account for
release by the Comptroller upon the determination of this Court of the issue of
the proposed intervention, and determination by a Court of competent
jurisdiction concerning the right to the monies. State Finance Law §
97-dd; § 20 Court of Claims Act.
In or about August, 1999 - five (5) years after the taking herein - Leon
asserts it purchased all the assets of Tartan, including the leasehold interest
in the subject property. Allen K. Leon, currently the Managing Member of
Leon, had served as Secretary of Tartan from 1979 to 1999, and was the person
who verified Tartan's claim against the State. An Assignment and Assumption of
Lease, dated August 6, 1999 was executed as a part of the purchase. [Affidavit
of Allen K. Leon (hereafter Leon Affidavit), Exhibit "A"]. Additionally,
agreements made in a Contract of Sale, executed on or about January 8, 1999,
which included five, pre-printed, "Blumberg" form pages, and a thirty page Rider
with Schedules and Appendices, are referenced as surviving the Assignment.
[Ibid., Exhibits "A" and "C"; also Exhibit "1" Affidavit of Kenneth L.
Robinson, Esq., dated December 12, 2001].
Thereafter, and on or about September 17, 1999, Counsel for Leon wrote a
lengthy letter to Counsel for the State indicating its alleged interest in this
claim and other claims, as "successor in interest" to Tartan. [Leon Affidavit,
Exhibit "D"]. He directed that "...no payment be made to Tartan, or any
designee of Tartan, on account of such claims,...[and indicated] that this
letter should be deemed the undersigned's notice of appearance in connection
with...the three claims...described." [Id.]. Copies of the letter are
noted as being sent to Louis Algios, Esq., then counsel for Tartan, and to
current counsel for Tartan, among others. [Id].
On or about September 22, 1999, the Assistant Attorney General responded by
asking that Counsel for Leon "...forward a copy of the substitutions [as
counsel] with the Court's endorsement to me and I will be glad to advise you of
the current status of each claim...." [Leon Affidavit, Exhibit "E"].
Mr. Algios wrote to Counsel for Leon on September 23, 1999, disputing Leon's
entitlement to any condemnation awards under the contract he had drafted. [Leon
Affidavit, Exhibit "F"]. Counsel for Leon wrote back on October 1, 1999
reiterating its position, and indicating Leon's "intention to pursue its rights
before the Department of Transportation." [Leon Affidavit, Exhibit "G"]. On
October 8, 1999, Mr. Algios returned the salvo. [Leon Affidavit, Exhibit
Beyond this exchange, the affidavits furnished by all give no further facts
concerning any entity's attempt to resolve the apparent contractual dispute. It
seems that one of the three claims Leon's counsel refers to in his September 17,
1999 letter to the Assistant Attorney General was settled without any attempt by
Leon to be included. [Affidavit of Kenneth L. Robinson, Esq., dated December 12,
2001, Paragraph 46]. Indeed, when this claim was settled before the court on
November 8, 2001, no mention was made of Leon's existence. At oral argument on
January 14, 2002, Counsel for Leon was unable to state why Leon did not attempt
to "intervene" earlier.
The Court of Claims is a court of limited jurisdiction. N.Y. Const. Art. 6,
§ 9; Silverman v Comptroller
, 40 AD2d 225, 226 (3d Dept. 1972);
NYS Thruway Authority v State of New York
, 51 Misc 2d 1003 (NY Ct Cl
1966). It is empowered, among other things, to hear claims against the State
"...for the appropriation of any real or personal property or any interest
therein...." [Court of Claims Act §
"...[t]o order the interpleader of
other parties known or unknown whenever necessary for a complete determination
of the claim or counterclaim..." [Court of Claims Act § 9(6)]; and
"...[t]o hear and determine special proceedings for the distribution of moneys
deposited pursuant to...[§304(E) Eminent Domain Procedure
The mechanism for exercising that
jurisdiction varies, though the simplest is a Claimant's timely service and
filing of a claim, in accordance with the appropriate limitation period
, Court of Claims Act §§10 and 11]. The Civil Practice Law
and Rules apply in the absence of "contrary direction" in the Court of Claims
Act or Rules. §101 Civil Practice Law and Rules; Court of Claims Act §
9(9) ; Easley v State of New York
, 10 Misc 2d 370, 372-373 (NY Ct Cl
"Intervention" - the relief sought here - "is a procedure whereby an outsider
can become a party to a pending action on her own initiative. It is sometimes
available as of right [§1012 Civil Practice Law and Rules] sometimes only
in the court's discretion, [§ 1013 Civil Practice Law and Rules] but it
must be sought by motion in all instances." Siegel, D., New York Practice
p.295 (3d Edition 1999).
In contrast "[i]nterpleader is the situation in which someone faces a possible
multiple liability at the hands of conflicting claimants. It allows that
person, who in interpleader context is known as a ‘stakeholder', to bring
all the claimants into court to fight it out, producing a judgment binding on
all the claimants and, under the doctrine of res judicata, forever protecting
the stakeholder...from further suit at the behest of any of them." Siegel, D.,
New York Practice p.247 (3d Edition 1999).
There is no specific indication in the Court of Claims Act that a non-party may
"intervene" in an appropriation claim as that term is used in §§1012,
1013 and 1014 Civil Practice Law and Rules. Accordingly, the Civil Practice Law
and Rules provisions appear to apply, including the case law decided
In this case, the proposed intervenor seeks intervention as of right, relying
on §1012(a)(3) Civil Practice Law and Rules. That section provides in
pertinent part that "...[u]pon timely motion, any person shall be permitted to
intervene in any action...when the action involves the disposition or
distribution of, or the title or a claim for damages for injury to, property and
the person may be affected adversely by the judgment." Any application to
intervene should include "...a proposed pleading setting forth the claim or
defense for which intervention is sought." § 1014 Civil Practice
Law and Rules.
"[I]ntervention cannot be used as a means to revive stale claims. The court
must first determine whether the addition of a new party is appropriate....[A]
party may be permitted to intervene and to relate its claim back if the proposed
intervenor's claim and that of the original...[claimant] are based on the same
transaction or occurrence. Also, the proposed intervenor and the
original...[claimant] must be so closely related that the
original....[claimant's] claim would have given the...[defendant state] notice
of the proposed intervenor's specific claim so that the imposition of the
additional claim would not prejudice the...[defendant state]. Thus, a stranger
could not intervene in a pending proceeding to interpose an otherwise
time-barred claim." Matter of Greater NY Health Care Facilities Assn v
DeBuono, 91 NY2d 716, 720-721 (1998).
Timeliness is built in to both the "as of right" intervention and permissive
intervention statutes. See, § 1013 Civil Practice Law and Rules.
Where a county had notice of the existence of certain tax certiorari proceedings
some ten years prior to its application to intervene - made after the parties to
the proceedings had reached settlements - it was barred from intervening on the
ground of untimeliness. Buffalo Mall, Inc. v Town of Clarence, 101 AD2d
701 (4th Dept 1984).
Similarly, proposed intervenors to a civil forfeiture action were found to have
waived any right to participate in the litigation when they "...failed to
demonstrate that they had any real interest in the property which is the subject
of...the....action....(citation omitted), [and] ...did not provide a
sufficient explanation for not filing their motion to intervene in a timely
manner (see, CPLR 1012; 1013). They did not move to intervene until
seven months after being notified of the commencement of the action and four
months after a default judgment was entered against the named defendants...."
Vacco v Herrera, 247 AD2d 608 (2d Dept. 1998).
Finally, in Rectory Realty Associates v Town of Southampton, 151 AD2d
737 (2d Dept. 1989), adjoining landowners to property that was the subject of
zoning litigation could not intervene more than a year after they first became
aware of the dispute, and when, "[a]fter extensive negotiations, the parties
entered into a proposed stipulation of settlement...." that was about to be
submitted for judicial approval. The court noted "...that the delay caused by
the motion to intervene would prejudice the rights of the plaintiffs in this
regard....(citations omitted)." Id., at 738.
With respect to interpleader, different considerations obtain. There is
authority for the use of interpleader - in limited fashion - under the Court of
Claims Act, [See,
Court of Claims Act §§14, 22], and there is
authority for an Assignee to be substituted as a Claimant, [See
, Court of
Claims Act §15]
; but interpleader is
initiated by a party's
motion for an "...order of interpleader or joinder
of anyone claiming or imputed to have such a claim or interest." Court of Claims
Act § 22(1).
Additionally, if "...the court is unable for any reason to determine the
various interests in the award for the property appropriated, and in any other
case as justice requires, it may, in and by its award and judgment direct the
comptroller to deposit the amount awarded as compensation for the property
appropriated in any bank in which moneys belonging to the fund from which such
compensation is payable....Any deposits made pursuant to this subdivision shall
be paid and distributed to the persons entitled to the same as ordered by the
supreme court on application of any person interested in such award. Court of
Claims Act § 22(2).
Monies deposited pursuant to Court of Claims Act § 22(2) are then subject
to claims of "...any person claiming an interest in the fund [,
who] may apply to the supreme court in and for the county of Albany, for an
order of distribution....by verified petition setting forth the rights of any
and all persons who may have, or claim to have, any interest in or lien or
incumbrance on, the property so appropriated and the award therefor, and the
names and addresses of such persons...." Court of Claims Act §23 .
(emphasis added). Monies may be ordered deposited only when interests
existing at the time of the actual appropriation are disputed [See,
Abraham v State of New York, 31 Misc 2d 252 (1962)], or when the Court of
Claims cannot determine the various interests. East River Savings Bank v
State of New York, 266 AD 494, 498 (3d Dept. 1943).
Thus, in Abraham v State of New York, supra, 253, the Court of
Claims held it was without jurisdiction to determine whether a general release
signed by an assignee of the Claimant/assignor was executed in exchange for the
assignment purportedly transferring all interest in the proceeds of an
appropriation award. The Court refused the parties' suggestion that the Court
direct that the award be deposited in a bank, saying that the deposits
authorized by Court of Claims Act §§22 and 23 could be ordered only
with respect "...to any incumbrance existing at the time of the actual
This requirement - that whatever the interest may be must exist at the time of
appropriation - is true for intervention as well as interpleader. See,
, Highway Displays, Inc.
, 3 Misc 2d 727 (NY Ct Cl
The case of Owasco River Railway, Inc. v State of New York, 181 AD2d 665
(2d Dept. 1992), is illustrative with respect to interpleader. In Owasco,
supra, the Court of Claims had granted claimant's motion to compel the
State to pay that Court's judgment in an appropriation claim, and denied the
State's cross-motion to reopen the claim and interplead a contract vendee. The
Appellate Division said:
...[A]lthough the Court of Claims has the authority to grant equitable relief
incidental to a claim for money judgment against the State...(citations
omitted), ‘[m]andamus lies to compel performance of a purely
ministerial act [only] where there is a clear legal right to the relief
Here the claimant did not have ‘a clear legal right' to the entire award
since there existed a contract vendee...who had an equitable interest in the
appropriated property and, thus, an interest in the appropriation award
(citations omitted). Accordingly, the court erred in granting mandamus
compelling the Comptroller to pay the judgment...
[B]oth the Court of Claims Act and the Eminent Domain Procedure Law provide
that if there are any apparent liens or encumbrances on the appropriated
property or if there is uncertainty as to how such an appropriation award shall
be apportioned, the court shall, upon motion of a party, interplead anyone
claiming or imputed to have such a claim or interest (see, EDPL 505 [B];
see also, Court of Claims Act § 22). The Court of Claims Act
also provides that the court ‘shall determine the respective interests and
rights of the parties to the award...and direct to whom the same shall be paid'
(Court of Claims Act § 22).
Unlike the situation in the case at bar, the Owasco Court had
applications before it brought by parties to the proceedings, not a proposed
intervenor. Additionally, the interest claimed appears to have existed at the
time of the appropriation. See, Also, Littwin v State of New York,
Claim No. 100979, M-64097, Mignano, J., November 27, 2001.
To similar effect is Matter of Henion v Comptroller of the State of New
197 AD2d 807 (3d Dept. 1993)
the Appellate Division reversed in part and affirmed in part a judgment of the
Albany County Supreme Court - transferring to Putnam County Supreme Court -
cross-petitions brought pursuant to Article 78 Civil Practice Law and Rules to
compel the New York State Comptroller to pay petitioners a judgment entered by
the Court of Claims in an appropriation proceeding. The Appellate Division
reversed that part of the Supreme Court judgment transferring the matter to
Putnam County Supreme Court, and instead transferred the cross-petition to the
Court of Claims for determination. The Appellate Division said "In 1971, both
the Court of Claims Act and the Real Property Actions and Proceedings Law were
amended, for the express purpose of removing Supreme Court's jurisdiction over
claims involving the respective interests and rights of parties to awards made
for property appropriated by the State, and vesting that jurisdiction in the
Court of Claims (Court of Claims Act § 22; RPAPL former §1505).
As the...[petitioners] petition essentially sets forth a claim to the
appropriation award, it must therefore be decided, in the first instance, by the
Court of Claims (see also
, Owasco Riv. Ry. v State of New York
181 AD2d 665,666, 580 NYS2d 466) unless that court is unable for any reason to
make such determination (see
, Court of Claims Act § 22).
Furthermore, inasmuch as it appears that the...[petitioners] have preserved the
jurisdiction of the Court of Claims by timely filing a notice of
), justice will be best served by a transfer
of the cross petition to that court...(citation omitted
)." Matter of
Henion v Comptroller of the State of New York, supra
, at 808.
Finally, in City of Syracuse v State of New York, 121 Misc 2d 8,11 (NY
Ct Cl 1983), a case concerned with determining entitlement to a fund created by
an Agreement of Adjustment under § 304(E)(1) Eminent Domain Procedure Law,
the Court of Claims said
The Eminent Domain Procedure Law confers upon the Court of Claims jurisdiction
to determine not only the value of appropriated property, but also to resolve
conflicts of title and order the distribution of an award or fund resulting from
the acquisition of property by the State of New York (EDPL 501subd [A]; 505).
The EDPL provisions were intended to avoid prolonged and duplicative litigation
in the Court of Claims and Supreme Court over title interests in the property,
and conflicting claims to the proceeds of an appropriation...(citation
....an interest in ‘the fund' must arise from an interest in the property
appropriated. Court of Claims jurisdiction is constitutionally and statutorily
limited to claims against the State of New York, claims in favor of the State of
New York, or claims arising from an appropriation by the State of New
Title interests or valid liens against real property which existed at the time
of taking and are extinguished by an appropriation are preserved as liens
against the award...(citations omitted). The holders of such interests
have the status of condemnees under the Eminent Domain Procedure Law, and may
pursue their rights in this court....
However, rights or remedies which do not arise from a valid interest in the
real property, but are based upon implied or express contract between private
parties, must be litigated in courts of general jurisdiction....(citation
The Court of Claims then granted Claimant's application for payment of the
entire fund, saying that the Claimant's lessees "...had no legal interest in, or
lien against the...premises at the time of the acquisition." Id., at
Neither party here - the Claimant or the State - has made application to
interplead Leon. Nor would such a request be appropriate given that whatever
interest Leon Petroleum asserts arose after the appropriation, and involves
contractual obligations of the parties to the contract, not entitlement to a
portion of an appropriation award based upon title disputes or liens extant at
the time of the taking. Accordingly, the Court is not constrained to direct such
interpleader given the procedural infirmity, as well as the lack of a cognizable
interest on Leon's part at the time of the taking.
Similarly, neither Claimant nor "...the person who succeeded claimant in
interest to said claim or any interest therein...." - here, allegedly, Leon -
sought "to secure from the court of claims and serve upon the attorney-general
an order substituting him as party to said claim...." , "...within six months
after...[becoming] invested with the title to said claim or any interest
therein...." Court of Claims Act §15.
, Thellusson v State of New York
. This infirmity
is procedural as well, given there is a clear statutory framework for asserting
rights of assignment that appears to have been completely ignored.
Finally, the motion to intervene - even assuming any right to do so - is
untimely. The taking occurred almost six (6) years ago. Whatever agreements
were entered into by Claimant and Leon were executed five (5) years ago.
Procedurally, no proposed pleading has been included as required. §1014
Civil Practice Law and Rules. It is inappropriate for Leon - who has had notice
of the pendency of this and other proceedings involving property in which it
purportedly has some interest - to sit idly by while the matter is litigated to
the point of settlement, and only then attempt intervention.
At this point, since this is a settled claim requiring only the submission of a
stipulation discontinuing the action, these issues appear academic, if not
barred by laches.
Leon's remedy, if any, lies
The application to intervene is in all respects denied.
March 19, 2002
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
See, also, §§ 103(c) and 501(B)
Eminent Domain Procedure Law.
Proceedings under § 304 Eminent Domain
Procedure Law are triggered earlier on in a condemnation case, when the State
and the owner negotiate an advance payment. This is confirmed by language in
the statute indicating that a condemnee who has not accepted advance payment can
still file an appropriation claim in the Court of Claims [§ 304(E)(3)
Eminent Domain Procedure Law]; and language concerning disposition of monies
deposited as an advance payment should the condemnee be granted a smaller award
in the Court of Claims. § 304(H) Eminent Domain Procedure Law.
"...In the event that by assignment or by
operation of law, some person other than the claimant named in the claim has
succeeded to the interest of...the claimant...named in such a claim, it shall be
the duty of the personal representative of said claimant or of the person who
succeeded claimant in interest to said claim or any interest therein within six
months after he becomes invested with....any interest therein, to secure from
the court of claims and serve upon the attorney-general an order substituting
him as party to said claim instead of the party named in said claim, to whose
right, title and interest he has succeeded, and in the event that he fails so to
do, the court of claims on motion of the attorney-general, on such notice as the
court may require, to all parties who have appeared in said action or proceeding
or to the assignee or successor of the claimant may dismiss said claim." Court
of Claims Act §15; See
, Thellusson v State of New York
Misc 301 (NY Ct Cl 1941)(Assignee failed to file assignment until five
years after execution; remedy in other courts)
; Ottaviano, Inc. v State
of New York
, 41 Misc 2d 578 (NY Ct Cl 1964) (No jurisdiction over
purported assignment of proceeds of judgment; not an assignment of
Under § 505 Eminent Domain Procedure
Law, "...where a condemnor disputes a condemnee's title or a right to all or a
portion of an award or a prospective award by reason of conflicting claims of
title, or if there is uncertainty as to how such payment should be apportioned,
the court, upon motion of any party
, shall interplead anyone
claiming or imputed to have such a conflicting claim or interest." (emphasis
A fee owner sought to intervene as a party
in claim against State by person who had leased owner's
property to put advertising signs up. Fee owner was unable to get State to pay
him his adjusted payment without a release from the Claimant, which the Claimant
wouldn't give without fee. Court of Claims said it had no jurisdiction to allow
owner to intervene as defendant
, but did "...have authority to interplead
the owner of a leasehold interest with the owner of a freehold interest as a
party claim. Const. Art.6 § 23; Court of Claims Act, § 9 subd. 6.
Any award to the claimant...for the value of its leasehold interest must be
apportioned out of the value of the unencumbered fee appropriated from...[the
fee owner]...."The Court appears to have viewed the language in the fee owner's
application asking for "other and further relief" to be a sufficient means for
then ordering his interpleader. This seems dubious given the clear statutory
language whereby interpleader may be directed only as discussed.
In the trial court decision more facts are
recited, confirming once again that the ‘interest' claimed existed at the
time of the appropriation, the Attorney General had sought to implead the
petitioners, and the petitioners claimed title by a right of reverter.
See, Matter of Henion v Comptroller of the State of New York
Misc 2d 977 (Albany Co. Sup. Ct. 1992), aff'd as modified
, 197 AD2d 807
(3d Dept. 1993).
In the same vein, the attorney-general has
not made a motion to dismiss the claim for failure to seek an order of
substitution, in accordance with Court of Claims Act § 15.
Generally, laches may not be held against the
State "...in its sovereign capacity...(citation omitted
)" but where
Defendant State sought to amend its Answer after a judgment awarding damages
affirmed on appeal, the application denied as untimely. Washington v State
of New York
, 188 Misc 2d 155, 157 (NY Ct Cl 2001).