New York State Court of Claims

New York State Court of Claims

COOK v. THE STATE OF NEW YORK, #2005-033-157, Claim No. 103504, Motion No. M-70715


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):

James J. Lack
Claimant’s attorney:
Certilman Balin Adler & Hyman, LLPBy: Dale Allinson, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Donald E. Shehigian, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for damages by Jerome and Sheila Cook (hereinafter “claimants”) as the result of the appropriation of land. Claimants own Condominium Unit 7 in a development known as “The Fairways at North Hills Condominium” (hereinafter “Fairways”), Manhasset, New York. On March 16, 2000, the State of New York (hereinafter “defendant”) filed two taking maps acquiring property from Fairways. The first taking (Map 228) acquired approximately 50,693 square feet in fee along Shelter Rock Road. The second taking (Map 229) acquired 9,852 square feet as a permanent easement.

Claimants filed the instant claim on December 11, 2000. Fairways filed a claim on May 14, 2001. On August 13, 1999, claimants and defendant entered into an agreement (defendant’s Exhibit D), for an advance payment to claimants of $108,000.00.

Defendant moves this Court for summary judgment and that the Court dismiss the claim[1]. In addition, defendant asks this Court for a judgment in the sum of the advance payment pursuant to EDPL §304.

Defendant argues that claimants are not entitled to an award as individual owners of a condominium unit in Fairways. Defendant relies on Murphy v State of New York, 14 AD3d 127. Murphy involved a condominium owner at Fairways who brought suit against the State of New York as an individual. In Murphy, the Appellate Division found that each individual unit owner in Fairways was not entitled to pursue an individual claim. The Court’s decision was based upon Article XII of Fairways’ By-Laws which provided for a pro rata distribution of a condemnation award.

In opposition, claimants argue that this matter does not involve the same issue as Murphy. According to claimants, Murphy dealt with the individual unit owners to file a claim on their own behalf. In the instant matter, the issue, according to claimants, is the parties entered into a contract for the advance payment.

The agreement for the advance payment in ¶7 states, in relevant part:
It is agreed that, if the Court of Claims finds the value of the property appropriated and legal damages caused by said appropriation . . . is equal to or exceeds the advance payment made hereunder, the amount of such advance payment shall be deducted from the amount so found by the Court and the award of said Court shall be in the amount of the excess, if any, over and above said advance payment . . . In the event the amount so found by the Court is less than the amount of said advance payment, upon the filing in the office of the Clerk of the Court of Claims of a Certified copy of this agreement together with Certification by the Comptroller of the State of New York of such payment and upon application made to the Court on at least eight days notice to Claimant, the Court shall direct the Clerk to enter judgment dismissing the claim and awarding to the State the difference between the award as found by the Court and the amount of said advance payment with appropriate interest.

Defendant posits that it may get a judgment against claimants. However, defendant acknowledges that it was skipping a step by seeking summary judgment and recovery of the advance payment as part of the same motion.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

In regard to the issue of claimants’ standing, there is no triable issue of fact. Claimants acknowledge that they are unit owners in Fairways. As such the issue of their standing has already been decided by the Appellate Division in Murphy. The Cooks, as unit members of Fairways, are subject to the By-Laws of Fairways. These By-Laws indicate that only Fairways may seek compensation for the taking.

The Court finds that there is no value to the claim brought by claimants.

Based upon the foregoing, defendant’s motion for summary judgment is granted and the claim is dismissed. Defendant’s motion for a money judgment to recover the advance payment is premature. The Clerk of the Court is directed to close the file.

Upon entry of this decision and order, defendant may make a filing pursuant to the Advance Payment contract in the Clerk’s Office, and then make a motion to recover the advance payment.

December 21, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated September 13, 2005 and filed September 14, 2005; Affirmation of Donald E. Shehigian, Esq. with annexed Exhibits A-D dated September 13, 2005 and filed September 14, 2005; Affirmation in Opposition of Dale Allinson, Esq. dated October 4, 2005 and filed October 5, 2005; Reply Affirmation of Donald E. Shehigian, Esq. dated October 11, 2005 and filed October 12, 2005.