New York State Court of Claims

New York State Court of Claims

WEISER v. THE STATE OF NEW YORK, #2006-036-562, Claim No. 108442, Motion No. M-71792


Motion for an order directing Comptroller to pay settlement proceeds is denied because claimant failed to comply with Eminent Domain Procedure Law.

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:
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Donald E. Shehigian, Principal Attorney
Third-party defendant’s attorney:

Signature date:
September 20, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants’ motion for an order directing the State Comptroller to pay them the agreed-upon settlement amount of this appropriation claim. Defendant opposes the motion as not being properly before the court. [1]

The filed papers indicate the parties agreed to settlement of the claim for the sum of $690,000, less the advance payment of $152,000 making a net settlement amount of $538,000. Between December 2004, when the settlement was agreed to, and February 2006, the parties attempted to obtain execution of all of the documents necessary to process the settlement, including an Assignment of Claim and Release on the part of claimants’ tenant, Motiva Enterprises, LLC, which operates a gas station on the subject premises pursuant to a long-term lease with claimants, the fee owners. Claimants’ counsel relates that negotiations with Motiva have proceeded, including claimants’ offer to share the proceeds of the settlement with them in exchange for their agreement to renovate the gas station, but those negotiations have been unsuccessful to date and Motiva has declined to execute the Assignment and Release, without which the Comptroller will not release the settlement proceeds.

On February 24, 2006, the Comptroller deposited the sum of $674,114 (representing the settlement amount plus accrued interest) in an Eminent Domain account pursuant to EDPL § 304 and advised claimant : “All or a portion of the deposited sum may be disbursed following an interested party’s proper application for a distribution proceeding pursuant to said statute” (Exhibit “L” to Notice of Motion).

Claimants argue that, pursuant to the terms of the lease with Motiva, the settlement proceeds belong solely to them, as the fee owner, and that since Motiva has no interest in the proceeds, the court should direct payment of the full amount to claimants without Motiva executing an Assignment and Release. In the notice of motion, claimants cite EDPL § 304 as the basis for the requested relief.

In opposition, defendant maintains claimants have failed to comply with the requirements of EDPL § 304 and Court of Claims Act § 23 and the court therefore lacks jurisdiction to grant the requested relief.

As noted by defendant, EDPL § 304 – which provides that when the attorney general is unable to certify the person or persons legally entitled to receive payment of the value of property acquired by the State through the power of eminent domain, it shall request the Comptroller to deposit the funds in an interest bearing account, “to be distributed as ordered by the court of claims on application of any person claiming an interest in the amount” – was enacted to address precisely the situation as is currently before the court. The statute further provides that the procedure on such an application “shall be the same as provided in [Court of Claims Act § 23]” and that “[n]o judgment of distribution shall be made unless the court shall first obtain personal jurisdiction over all persons certified by the attorney general as having or claiming to have an interest in the fund.” Court of Claims Act § 23 provides that an application for distribution shall be made by verified petition, “served in the same manner as a summons may be served in an action in the supreme court.”

Rather than proceeding in accordance with the governing statutes (i.e., presenting a verified petition commencing a special proceeding and an order to show cause so the court can direct service), claimants have instead merely brought a motion, serving defendant and an attorney for Motiva – which is not a party to this claim – by Federal Express overnight mail, which is not one of the ways in which a Supreme Court summons may be served. In response to defendant’s argument that the court lacks jurisdiction to grant the requested relief because of their failure to proceed as directed by EDPL § 304 and CCA § 23, claimants argue that since Motiva has not filed a claim, and since Motiva is not entitled to any of the proceeds pursuant to the terms of the lease, they should not be considered a necessary party and the court should proceed without jurisdiction over them. In support of this contention, claimant cites City of Syracuse v State of New York (121 Misc 2d 8 [1983]), a case in which the court, after noting “EDPL 304 (subd [E], par [1]) provides the basis for the court’s jurisdiction over this proceeding” (id., 10), determined that the tenant therein had no interest in the proceeds of the appropriation and directed payment by the Comptroller to the fee owner. The inapplicability of that decision to the motion currently before the court, which was not brought pursuant to § 304, and the circularity of claimants’ reasoning, is apparent.

Claimants are asking the court to determine that an entity whom the attorney general has determined has a possible interest in the proceeds does not have such an interest and are also, in effect, asking the court to determine that, because that entity has no interest in the proceeds, there is no need to obtain jurisdiction over it. Claimants ask the court to assume the very fact that is the ultimate fact to be proved. Without jurisdiction over Motiva (to be more accurate, over Motiva’s interest in the funds on deposit), the court cannot grant the requested relief. The sole way to obtain such jurisdiction is to proceed in the manner set forth in the EDPL and the Court of Claims Act. Claimants have not brought a proceeding pursuant to EDPL § 304, notwithstanding the reference in the notice of motion, and there is no authority for the court to proceed absent compliance with that statute.

Accordingly, the motion is denied, without prejudice to claimants proceeding pursuant to EDPL § 304 via a verified petition and order to show cause.

September 20, 2006
New York, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion, Affirmation and Exhibits, the Affirmation in Opposition and the Reply Affirmation.