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.