New York State Court of Claims

New York State Court of Claims

MAZUR BROTHERS v. THE STATE OF NEW YORK, #2007-010-051, Claim No. 112660, Motion No. SP-116


Synopsis


Motion application pursuant to EDPL §304.

Case Information

UID:
2007-010-051
Claimant(s):
MAZUR BROTHERS REALTY, LLC
Claimant short name:
MAZUR BROTHERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112660
Motion number(s):
SP-116
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
GOLDSTEIN, GOLDSTEIN, RIKON & GOTTLIEB, P.C.
By: Philip A. Sanchez, Esq.Michael Rikon, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 7, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2007-010-052


Decision

The following papers numbered 1-3 were read and considered by the Court[1] on this application brought pursuant to EDPL §304:[2]
Order to Show Cause, Verified Petition and Exhibits................................................1

Verified Answer.......................................................................................................2

Affidavit Submitted on Behalf of the City of White Plains.....................................3

The application fails to meet the statutory requirements of Court of Claims Act §23 as follows:
  1. The petition does not set forth “the rights of any and all persons who may have, or claim to have, any interest in or lien or incumbrance on, the property so appropriated and the award therefor, and the names and addresses of such persons, if known” (Court of Claims Act §23).
  2. The Order to Show Cause submitted did not provide for a return date “not less than 30 days after service of such order” (id.) and did not provide for service “in the same manner as a summons may be served in an action in supreme court” (id.).
  3. The application is incorrectly captioned with Claim Nos. 112660 and 112661 appearing as if they have been joined. The matters have not been joined.[3]
  4. While each claimant seeks an interest in the deposited funds, the papers fail to specify the amount or the proportion of the funds sought by each claimant.
  5. The claimants each apparently have competing interests and, therefore, cannot properly be represented by the same counsel given the conflicting legal claims to the same deposited funds.
Finally, it is noted that §23 of the Court of Claims Act provides that, “[i]f all the interested parties are competent and over the age of twenty-one years they may enter into a written stipulation providing for the distribution and the court shall thereupon issue an order which shall implement the stipulation.”

Accordingly, this application is DENIED without prejudice to the commencement of a proceeding in the proper form.


November 7, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims



[1]. While claimant’s attorney appeared in Court on the scheduled return date of October 17, 2007, oral argument had neither been requested nor scheduled and claimant’s attorney did not make such request at that time nor did he seek an adjournment of the return date for the purposes of submitting further papers. Nonetheless, thereafter, claimant’s attorney submitted a Verified Reply and Memorandum of Law filed-stamped October 22, 2007. The Court has rejected these papers as untimely.
[2].EDPL §304(E) provides that the procedure for such application shall be the same as provided in §23 of the Court of Claims Act respecting the distribution of deposited funds.
[3]. Moreover, Claim No. 112660 has since been dismissed by Decision and Order of Hon. Thomas H. Scuccimarra filed-stamped October 9, 2007.