New York State Court of Claims

New York State Court of Claims

TARTAN v. THE STATE OF NEW YORK, #2002-030-529, Claim No. 95056, Motion Nos. M-65182, CM-65298


Defendant's motion for a stay of payment of settlement principle in appropriation case granted for a period of thirty (30) days. Any further applications to be made to the Appellate Division to which pending appeal taken. Given prior stipulation concerning potential appellate review, Claimant's cross-motion for order directing immediate payment by State denied

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
July 18, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Defendant's motion for an Order

granting a stay and Claimant's cross-motion to enforce a Settlement Agreement:

1,2 Notice of Motion, Affirmation in Support by Rose Farrell Lowe, Assistant Attorney General, and accompanying exhibits.

3,4 Notice of Cross-motion, Affidavit in Opposition to Motion and in Support of Cross-motion by Kenneth L. Robinson, Esq., accompanying exhibits.

  1. Reply and Affirmation in Opposition to Cross-Motion by Rose Farrell Lowe, Assistant Attorney General.
6,7 Filed Papers: Claim; Transcript of Settlement Agreement of November 11, 2001, filed January 25, 2002.

After carefully reviewing the papers submitted, the aforementioned filed papers, and the applicable law, the motions are disposed of as follows:
Defendant's Motion for a Stay
The present motion refers to an underlying appropriation claim, first settled by stipulation of the parties on November 11, 2001, which stipulation was later modified by agreement on December 17, 2001 [See, Exhibit "C", Defendant's Affirmation in Support]. The later modification was occasioned because of an attempt by a third party, Leon Petroleum, LLC (hereafter Leon) to intervene in the already settled claim, and the need to clarify the effect of the proposed intervenor's application. Ultimately, this court denied the application to intervene, in a Decision and Order filed April 10, 2002, that is the subject of an appeal to the Appellate Division brought by Leon. [Exhibit "A", Defendant's Affirmation in Support]. The Notice of Appeal was filed with the Clerk of this Court on or about April 15, 2002. The appeal does not appear to have been perfected.

Inherent in this Court's Decision and Order of April 10, 2002 had been the finding that the contractual dispute between Leon and Tartan did not involve the Defendant State of New York. In the Claim before this Court, between the Claimant and the State of New York, a settlement was reached and, as noted in this Court's Decision and Order, all that remained - had the proposed intervenor not made its untimely application - was the submission of a stipulation discontinuing the action and the mechanics of payment to the Claimant by the State.

Nonetheless, in the modified stipulation placed upon the record by Counsel for the State and the Claimant on December 17, 2001 the parties agreed to execute an agreement of adjustment settling the claim for the agreed amount; and, upon submission of the agreement of adjustment by the Claimant to the State of New York, Office of the Comptroller, the Comptroller was authorized to deposit the settlement amount into a New York State short-term investment pool account (or "STIP") for release by the Comptroller upon the determination of this Court of the issue of the proposed intervention. [See, Exhibit "C", Defendant's Affirmation in Support]. Significantly, the parties also stipulated that "...upon the final determination and order of the Court on the two issues,[1] and further upon the expiration of any time to appeal either the issue of intervention or the final determination on the motion and the entry of judgment of the decision of the Court of the Appellate Division, upon service upon the Counsel for the State of New York in this case and order of the Court, or the final determination and order from the Appellate Division on either issue, the Counsel for the State of New York will inform the Comptroller of the entry that shall be paid and the settlement amount forthwith will be paid and the Comptroller shall settle the amount pursuant to the underlying principal amount specified." [Ibid, Page 5].

The State now advances the argument that it is entitled to a stay on payment of the appropriation award to the Claimant, because of the aforementioned appeal of this Court's Decision and Order on the proposed intervention. Without citing any authority, or including an affidavit by a person with knowledge,[2] as to the alleged confusion as to who is entitled to payment of the settled claim, the State asserts that it " a stakeholder..." [Paragraph 6, Defendant's Affirmation in Support] that, presumably, wishes to avoid the possibility of double payment and wants to "keep the parties in status quo pending a determination of the appeal."[Paragraph 9, Ibid]. Counsel further states: "...Immediate payment is never made by the State, as claimants must executed (sic) any and all documents requested and approved by the Department of Law before certification can be made of entitlement of payment to the State Comptroller. Tartan's counsel over the years has had many dealings and settlements with the State and is very familiar with the process. Page 10 of the transcript of the settlement of this claim attached as Exhibit C contains statements if an appeal were to be taken a bond for the value of the settlement could be made. Tartan's failure to advise Leon of its attempt to seek payment without similarly advising Leon of same underscores the need for this motion." [Paragraph 10, Ibid].

Counsel for Defendant does not indicate what documents have been presented by the State to Claimant for execution that have not been executed as requested, and does not indicate that a request for a bond from the appellant - provided as an alternative during the stipulation of settlement[3] - was made or why any failure on the part of claimant to request a bond should be read as a lack of good faith on Tartan's part. In that regard, the Court notes that the State of New York is listed as a party respondent on the Notice of Appeal as well.

Indeed, were it not for the December 17, 2001 stipulation's contemplation of proceedings in the Appellate Division, this Court would deny the State's application outright, given that the Court of Claims does not have jurisdiction generally over Leon's claim of entitlement to the settlement proceeds pursuant to its contract[4], as well as this Court's doubt that the State is at all subject to multiple liability. See, e.g., Matter of New York City School Construction Authority, 188 Misc 2d 389, 391 (NY Co Sup Ct 2001).[5]

The State correctly notes that the so-called automatic stay provisions of §5519(a)(1) Civil Practice Law and Rules do not appear to apply, since the State is neither an appellant or the moving party as required.[6]

With respect to discretionary stays generally, §5519(c) Civil Practice Law and Rules provides in pertinent part that "...[t]he court from or to which an appeal is taken or the court of original instance may stay all proceedings to enforce the judgement or order appealed from pending an a case not provided for in subdivision (a) ...or may grant a limited stay or may vacate, limit or modify any stay imposed by subdivision (a) or subdivision (b) or this subdivision, except that only the court to which an appeal is taken may vacate, limit or modify a stay imposed by paragraph one of subdivision (a)." A party seeking the stay must be "aggrieved" in that it has an interest in the question involved in the appeal. C.f., Roach v County of Albany, 30 AD2d 885 (3d Dept. 1968), adhered to, 31 AD2d 681 (3d Dept 1968). In an application for a discretionary stay, certainly, the Court must of necessity consider the potential for the State's exposure. It also should consider from where the stay would be most effective, in terms of what court is actually involved in making the decisive determinations. It is of note that the statute implies a certain limitation on the court of original instance with respect to automatic stays involving the State.[7]

Although it would seem that the better practice would be for the appellant or the State to seek a stay in the Appellate Division, since it will be the Court more fully resolving the issues, nonetheless this Court finds that a temporary stay will better preserve the status of the parties, and reflects the agreements they placed on the record on December 17, 2001, until the Appellate Division either acts on the stay to be imposed herein or otherwise resolves the issues presented to it on appeal. Accordingly, the Court hereby exercises its discretion and the Defendant's motion is granted to the extent that it is stayed from immediate payment of the monies settled upon to the Claimant and it is hereby

ORDERED, that a temporary stay is entered herein for a period of thirty (30) days, effective August 5, 2002, staying the State's payment of the settlement principle together with accumulated interest to the Claimant herein, and it is further

ORDERED, that any further application concerning this stay shall be made to the Appellate Division of the Supreme Court, Second Department, the Court to which the appeal of this Court's Decision and Order of April 10, 2002 was taken.

. Claimant's Motion for Enforcement of Agreement of Adjustment

Although Claimant has supported its application with some legal authority concerning the jurisdiction of the Court and has supplied a copy of the agreement of adjustment discussed during the December 17, 2001 stipulation - apparently never executed by the State - nonetheless its application is denied. The stipulation entered into by Tartan and the State on December 17, 2001, awkwardly worded though it was, clearly contemplated appellate practice and a certain amount of delay in payment for the expiration of the appeals period and/or perfection of the appeal. The only protection Tartan asked for at the time was that Leon be required to post a bond should it appeal this Court's determination on intervention, protection that at the time the State indicated would be beyond this Court's jurisdiction to impose. [See, Exhibit "C" Page 7, Defendant's Affirmation in Support]. It would be inappropriate to summarily direct that the State pay over the settlement monies to Tartan, given the Claimant's entry into the stipulation of December 17, 2001.

This shall constitute the decision and order in this matter.

July 18, 2002
White Plains, New York

Judge of the Court of Claims

[1] Presumably Counsel for the State was referring to the issue of intervention and the contractual claim between Leon and Tartan, though it is not precisely clear from the language used.
[2] The State Comptroller or his agent, for example.
[3] The transcript specifically provides that: "If either party...appeals the decision of the Court, nothing shall prevent the other party from requesting that a bond be furnished by the Appellant...." [ Exhibit "C", Pages 9-10; Affirmation In Support].
[4] Given the procedural and factual posture here - all discussed in this Court's decision now on appeal - Leon's remedy lies elsewhere, since it is only those interests in real property existing as of the time of the taking over which the Court of Claims has jurisdiction. Court of Claims Act §9(2).
[5] In that case the Court ruled that the condemnor could not withhold part of the condemnation award to protect itself from a claim for a real estate broker's commission allegedly owed by the condemnee. The real estate broker's claim " personal to the party that contracted with the broker and does not run with the land which was the subject of the brokerage contract...."
[6] If it did apply, this Court would then be prevented from any action or would act in excess of its jurisdiction in that such an automatic stay "...may only be vacated, limited or modified by ‘the court to which an appeal is taken'...(citation omitted)." Plowden v Manganiello, 143 Misc 2d 446, 448, 449 (Bronx Co Supreme Court 1989). "The language of CPLR 5519 necessarily implies that the section applies only to extant orders and judgment. Thus, the introductory part of CPLR 5519(a) refers to a stay of ‘all proceedings to enforce the judgment or order appealed from.' The entire structure of CPLR 5519 relies on the premise that a stay affects only the immediate order or judgment involved, not any other order in the same case...(citations omitted)." [Id].
[7] See, footnote 6.