New York State Court of Claims

New York State Court of Claims

WINCHELL v. MARGARET ANN (WINCHELL) MENART, ALAN G. HEVESI, COMPTROLLER, DONALD J. O'CONNOR, JR., AND ELIOT SPITZER, #2005-019-541, Claim No. 104676, Motion No. SP-108


Synopsis


Petitioner's application for the release of an advance payment award held in an eminent domain account pursuant to EDPL 304 (E) (1) is granted; payment is stayed for thirty (30) days after Petitioner servers copies of this Order, with notice of entry, upon all interested parties listed in the Order to Show Cause pursuant to CCA 25.

Case Information

UID:
2005-019-541
Claimant(s):
ALAN M. WINCHELL
Claimant short name:
WINCHELL
Footnote (claimant name) :

Defendant(s):
MARGARET ANN (WINCHELL) MENART, ALAN G. HEVESI, COMPTROLLER, DONALD J. O'CONNOR, JR., AND ELIOT SPITZER
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104676
Motion number(s):
SP-108
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
O'CONNOR & O'CONNORBY: Donald J. O'Connor, Jr., Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Donald E. Shehigian, Principal Attorney, of counsel
Third-party defendant's attorney:

Signature date:
June 14, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Petitioner moves by order to show cause dated April 18, 2005 for an order of distribution relative to an advance payment held in eminent domain account W004046 pursuant to the Eminent Domain Procedure Law ("EDPL") 304 (E) (1).

On August 14, 1998, the State of New York appropriated title in certain property consisting of approximately 3.8 acres on Route 17 located in the Town of Windsor, Broome County, by filing a copy of a certain appropriation map and description entitled Binghamton-Windsor, Part 3, S.H. 5148, Map No. 116, Parcel Nos. 179, 180, County of Broome, Town of Windsor, as more fully described in the claim herein. (Claim, paragraph "Fifth"). At the time of said appropriation the subject premises were owned by Petitioner Alan M. Winchell and Margaret Ann Winchell, now Margaret Ann (Winchell) Menart. The petition alleges that Petitioner and respondent Margaret Ann (Winchell) Menart were divorced by a Judgment and Decree of Divorce dated July 30, 1999. (Petition, Exhibit A). According to the terms of said Judgment and Decree of Divorce, respondent Margaret Ann (Winchell) Menart was directed to convey all of her right, title and interest in the subject premises to Petitioner. Respondent Margaret Ann (Winchell) Menart did so convey her interest in the subject premises by deed dated August 8, 1999 which was recorded in the Broome County Clerk's office on February 28, 2000 in Book 1923 of Deeds at Page 1160. (Petition, Exhibit B). Thereafter, the Comptroller of the State of New York ("State Comptroller") deposited an advance payment into an eminent domain account pursuant to the procedure set forth in EDPL 304 (E) (1). The petition further alleges that respondent Margaret Ann (Winchell) Menart has refused to execute any necessary documentation to permit distribution of the proceeds on deposit. Petitioner now seeks the entire advance payment and accrued interest free of any claims. This matter was heard in the Binghamton District on June 8, 2005.


The Attorney General identified the following parties as having a potential interest in the advance payment:

(1) Petitioner Alan M. Winchell, a fee owner;

(2) Margaret Ann (Winchell) Menart, a former fee owner;

(3) Donald J. O'Connor, Jr., possible attorney's lien;

(4) Alan G. Hevesi, comptroller, depository of funds; and

(5) Eliot Spitzer, Attorney General, a necessary party pursuant to EDPL 304 (E) and Court of Claims Act § 23.


(Petition, Schedule A).


On said return date, the second potentially interested party, Margaret Ann (Winchell) Menart, appeared pro se in response to said order to show cause. Ms. Menart was sworn in by the court and conceded that she had been served with a copy of the instant order to show cause and petition. Respondent Margaret Ann (Winchell) Menart acknowledged on the record the aforementioned Judgment and Decree of Divorce, the deed executed by her transferring her interest in the subject premises, and that she currently has no interest in the subject premises. Based on the foregoing, the court finds that Petitioner is solely entitled to the funds on deposit.


The third potentially interested party, Donald J. O'Connor, Jr., did not pursue a possible attorney's lien.


The State Comptroller's interest is only that of the depository of the funds for the advance payment. 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 Attorney General submitted a letter to the court dated June 6, 2005 in lieu of a personal appearance on the return date indicating that the State's interest in this matter is solely that of a stakeholder and that it was not opposed to the requested relief provided the court were to find that Petitioner is solely entitled to the funds on deposit.


Based on the foregoing, the court finds that the petition and supporting exhibits demonstrate the apparent absence of any superior interest to the advance payment funds and the affidavits of service filed herein show that all parties certified by the Attorney General's office as having a potential interest in the funds have been served; therefore, the court, having obtained jurisdiction, hereby grants petitioner's application. The Comptroller is directed to pay the balance on deposit in the Eminent Domain Account to Petitioner Alan M. Winchell. Payment is stayed for thirty (30) days after Petitioner serves copies of this Decision and Order upon all interested parties listed in the Order to Show Cause pursuant to Court of Claims Act § 25.



June 14, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The following papers were considered by the court in connection with this matter:
  1. Order to Show Cause, SP- 108, signed April 18, 2005, and filed June 3, 2005.
  2. Petition of Alan M. Winchell, in support of Order to Show Cause, sworn to March 1, 2005, with attached exhibits.
  3. Verified Answer, dated May 23, 2005, and filed May 24, 2005.
  4. Letter from Donald E. Shehigian, Principal Attorney to the Court dated and received June 6, 2005.