New York State Court of Claims

New York State Court of Claims

ROTHENBERG v. THE STATE OF NEW YORK, #2004-033-071, Claim No. 108418, Motion No. SP-104


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:
Siegel, Fenchel & Peddy, P.C.By: Jason M. Penighetti, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Donald E. Shehigian, Esq., Of Counsel
Third-party defendant's attorney:

Signature date:
September 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


By Order to Show Cause, Marvin Rothenberg, Michael Rothenberg and Richard L. Cohen (hereinafter "claimants"), ask this Court to direct the comptroller to distribute the advance payment for their condemnation proceeding to claimants with appropriate interest and for a determination that Kevin J. Burke, Lorraine A. Burke, Kim Gross and Jeffrey Amato have no legal or equitable interest in said advance payment or any award made in respect to the condemnation proceeding[1]. This Order to Show Cause is brought by claimants pursuant to Court of Claims Act §23.

Defendant, through its eminent domain powers, vested title in itself to a portion of claimants' land on August 12, 2003.[2] On October 1, 2003, defendant offered an advance payment to claimants. The advance payment was accepted with a reservation to bring an action in this Court.

A fence located on the subject property does not belong to claimants and may belong to adjoining property owners. The adjoining properties are owned by Kevin J. Burke, Lorraine A. Burke, Kim Gross and Jeffrey Amato.[3]

In opposition, defendant objects to the timing of the service of the Order to Show Cause and claims that possible interested parties were not properly served.

The Court notes that service was accomplished on the adjoining property owners through either personal service or "nail and mail". Claimants have filed affidavits of service attesting to their attempts at service. To date, the Court has not heard from the adjoining property owners.

This Court has jurisdiction to determine apportionment of the advance payment and the priorities of the parties who have a claim to the award (Eminent Domain Procedure Law § 304 and Court of Claims Act § 23).

Defendant's remaining objection to distribution of the advance payment is that not all title objections have been cleared. However, defendant makes no specific allegations as to what objections have not been cleared.

Based on the foregoing, the Court finds that claimants are the only parties entitled to the distribution of the advance payment, as well as any award made in condemnation. Claimants are directed to serve the decision and order with notice of entry upon defendant, as well as Kevin J. Burke, Lorraine A. Burke, Kim Gross and Jeffrey Amato within thirty (30) days of the filing date of this decision and order. Claimants shall file the affidavits of service of the decision and order with notice of entry with the Clerk of this Court. The Comptroller's Office is directed to distribute the proceeds of the advance payment to claimants no sooner than thirty (30) days after the filing of all affidavits of service.

Defendant makes a further application that this Court recuse itself from adjudicating the underlying claim. The basis for defendant's application is claimants' inadvertent disclosure of the advance payment to this Court in its motion papers. The Court grants defendant's application. Accordingly, this file is being returned to the Clerk of the Court for such reassignment as the Presiding Judge may deem appropriate.

Accordingly, the 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.

September 30, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on claimants' Order to Show Cause: Order to Show Cause filed May 17, 2004; Petition of Jason M. Penighetti, Esq. in Support of Relief Pursuant to EDPL §304(E)(1) and CCA §23 with annexed Exhibits 1-6 dated May 5, 2004 and filed May 17, 2004; Verified Answer to Petition of Donald E. Shehigian, Of Counsel to Eliot Spitzer, New York State Attorney General, dated May 17, 2004 and filed May 18, 2004; Reply Affirmation of Jason M. Penighetti, Esq. with annexed Exhibit A dated May 25, 2004 and filed May 26, 2004.
[2]Claimants have failed to present evidence that they are the owners of the subject property. However, in defendant's answer to the Order to Show Cause, defendant admits that claimants are the owners of the subject property (defendant's Affirmation par. "FIRST").
[3]Kevin J. Burke and Lorraine A. Burke reside at 15 Fable Road, St. James, New York. Kim Gross and Jeffrey Amato reside at 10 Wandering Way, Smithtown, New York.