New York State Court of Claims

New York State Court of Claims

MEIXSELL v. THE STATE OF NEW YORK , #2003-028-568, Claim No. 95435, Motion Nos. M-66044, M-66801


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):
M-66044, M-66801
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Rose Farrell Lowe, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read:

Claimant's Motion for Leave to Renew and Reargue (M-66044) this Court's prior decision of Claimant's motion pursuant to EDPL §701 (decision and order filed October 7, 2002 M-64829 & M-64830) and Claimant's Order to Show Cause (M-66801) seeking an order directing the Comptroller to pay counsel the fees set out in the aforementioned decision and order, and an order seeking additional counsel fees:[1]


  1. Notice of Motion and Supporting Affirmation of Irving Like, Esq. with annexed Exhibits A-H filed November 14, 2002;
  1. Affirmation in Opposition of Assistant Attorney General Rose F. Lowe, filed November 27, 2002;
  1. Reply Affirmation of Irving Like, Esq. filed November 27, 2002


  1. Order to Show Cause and Supporting Affirmation of Irving Like, Esq. With annexed Exhibits A-D;
  1. Affirmation in Opposition of Claimant, Edward Meixsell, with Annexed Exhibits A-D, filed May 13, 2003;
  1. Affirmation in Opposition of Assistant Attorney General Rose F. Lowe, received June 5, 2003;
  1. Reply Affirmation of Irving Like, Esq. with annexed Exhibits 1-5, filed May 28, 2003.

It seems that Claimant and his attorneys, Reilly, Like, Tenety & Ambrosino (hereinafter RLTA) do not agree on the amount of counsel fees which RLTA are entitled to as a result of the appropriation of Claimant's property and the motion for EDPL §701 relief. Claimant is of the opinion that RLTA is only entitled to the fees awarded by the Court as a result of the EDPL §701 motion. However, RLTA argues that it is entitled to 25% of the fees produced through the EDPL §701 motion in addition to the amount of counsel fees awarded in that motion. As a result of this disagreement between RLTA and Claimant, the papers necessary to process any payments to Claimant have not been executed. Claimant, through new counsel, and RLTA have reached a stipulation with each other, and have submitted said stipulation to this Court. The stipulation provides for payment of the award to Claimant and for payment of counsel fees, as determined by the EDPL §701 decision to be paid directly to RLTA.

The State has submitted opposition to the stipulation as well as the Order to Show Cause and the motion for leave to renew/reargue. The State argues that the stipulation between the parties does not satisfy the Comptroller's need for proper documentation in order to certify title and release the State from further liability.

Court of Claims Act §20(6), in relevant part states
No such judgment shall be paid until there shall be filed with the comptroller a copy thereof duly certified by the clerk of the court of claims together with a certificate of the attorney-general that no appeal has been or will be taken by the state from the judgment or part thereof specified in the certificate, and a release and waiver by the attorney for the claimant of any lien for services upon said claimant's cause of action, claim, award, verdict, report, decision or judgment in favor of said claimant, which said attorney may have thereon under and by virtue of section four hundred and seventy-five of the judiciary law; and where an award is made by reason of the appropriation of land or any interest therein for a public use or for damages to land caused by the state, there shall also be filed with the comptroller, a satisfactory abstract of title and certificate of search as to incumbrances, showing the person demanding such damages to be legally entitled thereto.
It is clear that Claimant and RLTA are attempting to circumvent the statute which governs how an award is paid. The Court, even if inclined, is unable to sign such a stipulation.

The Court turns its attention to the remaining relief sought by RLTA - the determination of additional money owed by the Claimant according to the attorneys' retainer. RLTA asks this Court through the Order to Show Cause and the Motion to Reargue and Renew to reconsider its prior decision which denied additional counsel fees. RLTA submits that according to its retainer with the Claimant it is entitled to 25% of the appropriation award and 25% of any other money recovered through working to obtain an EDPL §701 award. Claimant submits an affidavit in opposition stating that RLTA is not entitled to any additional money other than what was recovered by the EDPL §701 motion. Claimant asks the Court to direct the Comptroller to issue separate checks to RLTA and Claimant for the amounts previously awarded together with interest.

The State argues that this problem between Claimant and RLTA is outside the jurisdiction of this Court. The State asks that the Court deny the motion and direct the Comptroller to deposit the money in a bank pending a Supreme Court determination. This type of resolution, according to the State, would relieve the State of any further involvement in this matter, and would allow a contract matter to be determined in a court of appropriate jurisdiction.

Court of Claims Act §22(1)
In the event there may be adverse and conflicting claims asserted to an award for property appropriated by the state or any part thereof, or if there be any apparent lien or encumbrance on the property so appropriated, or on any interest therein, or any dower or other interest which has been asserted by any party as affecting the rights to an award, or which has caused the attorney general or other official of the state to refuse to make payment of any portion of the award, the court may, upon motion of a party in an action to determine the amount of said award, order the interpleader or joinder of anyone claiming or imputed to have such a claim or interest.

The court shall determine the respective interests and rights of the parties to the award and the method of apportionment thereof, and direct to whom the same shall be paid.
In the instant matter, there are no adverse and conflicting claims to the award for the appropriation of Claimant's property. RLTA's claim is for additional attorney fees. RLTA is asking this Court to determine a fee dispute, based upon the retainer, between RLTA and the Claimant. This conflict does not concern the Defendant, the State of New York, as the money sought by RLTA is to be paid by Claimant directly to RLTA.

This Court does not have jurisdiction under §22 of the Court of Claims Act as suggested by the State. In addition, Court of Claims Act §9 does not confer jurisdiction upon this Court to hear this matter between private parties.

Accordingly, the Motion to Renew and Reargue and the Order to Show Cause are denied. Pursuant to Court of Claims Act §22, the Comptroller is directed to deposit the award, together with the additional award pursuant to EDPL §701 into an appropriate bank within the State of New York. The parties shall make application for distribution of the award in Supreme Court, venue of Albany County, pursuant to Court of Claims Act §23. This judgment shall be without interest, costs or disbursements.

September 19, 2003
Albany, New York

Judge of the Court of Claims

[1]In addition, Claimant's counsel has submitted a proposed stipulation which would pay out the previously decided EDPL §701 award to counsel and Claimant.