New York State Court of Claims

New York State Court of Claims

STREET v. THE STATE OF NEW YORK, et. al., #2003-013-001, Claim No. 106075, Motion No. SP-103


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:
Attorney General of the State of New York
BY: DONALD E. SHEHIGIAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On December 4, 2002, 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):
1. Order to Show Cause; Verified Petition; Affidavit and Exhibits Annexed, all filed on September 30, 2002

2. Verified Answer of the Defendant

3. Affidavits of Service Upon all the Respondents (Court Exhibits 1 and 2)

4. Filed Papers: Claim

The State of New York appropriated certain real property in the Town of Greece, filing copies of a certain appropriation map and description entitled Map No. 73, Parcel No. 80, SH6, Rochester-West Greece with the New York State Department of Transportation on October 10, 2001, and with the Monroe County Clerk's Office on November 26, 2001, and was served upon the Claimant-Petitioner on or about January 14, 2002. The Claimant-Petitioner was the sole owner of the appropriated land in question at the time of the appropriation (see, Petition and annexed Exhibits). On or about April 25, 2002, the State of New York and the Claimant-Petitioner entered into an Agreement for Advance Payment (Exhibits 4 and 5).

The Comptroller of the State of New York ("State Comptroller") deposited an advance award with interest into Eminent Domain Account WO57515, and pursuant to the procedure set forth in EDPL 304(E), and Court of Claims Act Section 23, Claimant-Petitioner seeks a distribution of these proceeds. The Attorney General, by letter dated July 30, 2002 (Exhibit 6), identified the parties listed below as having a potential interest in the advance award:

Claimant Fee Interest

Town of Greece Easement

Monroe County Water Possible Easement

Rochester Gas & Electric Corp. Possible Easement

Time Warner Entertainment

Advance/Newhouse Partnership Possible Easement

Golden Tans of Rochester, Inc. Commercial Tenant

Big Apple Development Corp.,

d/b/a Manhattan Bagel Commercial Tenant

America's Best Contact Commercial Tenant

Sylvan Learning Center Commercial Tenant

Brorrelli [sic] Travel Commercial Tenant

Loc & Phong Nail Salon Commercial Tenant

Regis Corporation Commercial Tenant

John Blanding (Frameworks) Commercial Tenant

Rochester Dance Studio Commercial Tenant

Nu Life, Inc. Commercial Tenant

Boekmann Jewelers Commercial Tenant

LaSalle Bank National Assn., as Trustee for the Registered Holders of Heller Financial Commercial Mortgage Pass-Through Certificates, Series 2000, PH-1 Mortgage

Hancock & Estabrook Attorney's Lien

County of Monroe Real Property Tax Lien; 2001 County & Town Taxes; 2000-2001 School taxes, Tax Parcel 074.20-1-010

H. Carl McCall, Comptroller Depository

Eliot Spitzer, Attorney General Necessary Party by Statute, EDPL 304(E) and Court of Claims Act §23

Moving by Order to Show Cause for an order pursuant to EDPL 304(E), Claimant-Petitioner now seeks the entire advance payment of the condemnation award of $450,000.00 and accrued interest of $1,001.25 free of any claims to be paid as follows:
1. The sum of $368,100.00 to be paid directly to Midland Loan Services on behalf of Respondent LaSalle Bank National Association, as Trustee for the registered holders of Heller Financial Commercial Mortgage Pass-Through Certificates, Series 2000, PH-1;
2. The remaining $81,900.00 to be held in an existing tenant reserve escrow held by Midland Loan Services; and
3. The balance, with all accrued interest, to be paid to Claimant-Petitioner.,

The Claimant-Petitioner provided proof of personal service upon all named respondents herein (Court Exhibit 1), except for the Rochester Dance Studio, which was served by certified mail, return receipt requested, and regular first class mail (Court Exhibit 2) because no current place of business or any individual associated with said business could be located. No papers, other than the Defendant's Answer, were received by the Court in opposition to the relief requested. Hans Boekmann of Boekmann Jewelers did appear in Court, but came for informational purposes only, and expressed no opposition to the proposed distribution.

The law firm representing Claimant-Petitioner, Hancock & Estabrook, LLP, John R. Varney, Esq., of counsel, has included Mr. Varney's affidavit expressly waiving any attorney's lien that the law firm or he individually might claim in connection with this deposit (Eminent Domain Account WO57515). 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.

The verified petition and appended exhibits and the total lack of any opposition demonstrate the absence of any superior other interest in the distribution of the advance payment funds as sought herein. 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-Petitioner's application. The Comptroller is directed to make payments as specified above from Eminent Domain Account WO57515. Payment is stayed for 30 days after Claimant-Petitioner 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.

Finally, since I have been made aware of the exact amount deposited by the Comptroller pursuant to the Advanced Payment Agreement between the parties (Exhibit 4), I must necessarily recuse myself from deciding this claim when it is reached for trial. Accordingly, this file is being returned to the Chief Clerk of the Court for such reassignment as the Presiding Judge may deem appropriate. Accordingly, the Chief Clerk is directed to seal any and all papers submitted upon this special proceeding and this order until after the trial of this matter and the entry of judgment.

January 17, 2003
Rochester, New York

Judge of the Court of Claims