New York State Court of Claims

New York State Court of Claims

MAZUR v. THE STATE OF NEW YORK, #2007-030-525, Claim No. 112660, Motion Nos. M-72607, CM-72664


One of four related claims concerning the partial taking of properties owned by this claimant. Motion to dismiss the cause of action alleging breach of contract granted. Cross-motion by claimant for summary judgment denied. Documentary record establishes that State made offer of compensation, and the claimant accepted same. The State was thereafter unable to certify to the comptroller exactly who was entitled to payment under the agreement, and deposited monies as required. Eminent Domain Procedure Law §304(E)(1). Claimant must commence a special proceeding to allow release; not breach of contract claim. Eminent Domain Procedure Law §304(E); Court of Claims Act §23.

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:
Third-party defendant’s attorney:

Signature date:
May 15, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered[1] on Defendant’s motion to dismiss and

Claimant’s cross-motion for summary judgment:

1,2 Notice of Motion; Affirmation by J. Gardner Ryan, Assistant Attorney General and attached exhibits

3-5 Notice of Cross-Motion; Affidavit of Herman Press, Managing Partner of Mazur Brothers Realty, LLC, Claimant; Affirmation of Michael Rikon, Counsel for the Claimant

6,7 Filed papers: Claim, Answer

This is one of four related claims[2] concerning the partial taking of properties owned by this claimant on Lake Street in White Plains, New York, taken by the State in connection with a highway project along the Cross-Westchester Expressway.[3] In this claim, the former fee owner of the subject property alleges that the State breached its contract to make an agreed settlement payment to it for the partial taking of property at 80 Lake Street on April 4, 2006, as memorialized in what appears to be a fully executed “Agreement of Adjustment” forwarded to claimant’s counsel as “approved” on June 20, 2006 from the real estate department of the New York State Department of Transportation. [See Exhibit 1, Affirmation by J. Gardner Ryan; and Exhibit A, Affidavit of Herman Press]. Notably, the agreement was forwarded to Claimant’s attorney with the information that it was being “forwarded to the Office of the Attorney General for further processing which will permit payment.” [Ibid.].

The claim also alleges “[i]n the alternative, if the agreement of adjustment is vacated or invalid, Claimant will file this claim for the appropriation of its property.” [Claim Number 112660, ¶18].

In its answer, in addition to general denials, and specific denial of the allegations contained in ¶¶ 8, 10, 11, 12, 15, 18 and 20, defendant asserts as a complete defense to the claim that claimant has failed to satisfy a prerequisite to payment to the effect that it has not delivered to the Attorney General all papers that in the determination of the Attorney General are needed for a full release of the State from all claims by reason of the appropriation, as set forth in the Agreement of Adjustment dated January 27, 2006, and as requested in writing on April 18, 2006. The January 27, 2006 Agreement of Adjustment provides in pertinent part that the monies offered as “compensation” are for “. . . the total value of the property so appropriated and for all legal damages caused by such appropriation, including all damages incurred by virtue and during the pendency of said appropriation proceedings . . . excepting the aggregate value, if any, of claims hereinafter specifically excluded . . .” [See Affirmation by J. Gardner Ryan, Assistant Attorney General, Exhibit 1, Agreement of Adjustment, ¶ 1]. No claims are “specifically excluded” thereafter. Moreover, the claimant was required to “execute and deliver . . . to the Attorney General . . . all formal papers which the Attorney General deems necessary to authorize payment, and to secure to the State a full release of all claims by reason of the aforementioned appropriation . . . ” [ibid. ¶ 2]. The agreement further provides that it “. . . is exclusive of the claims, if any, of persons other than owners of the appropriated property, their tenants, mortgagees and lienors . . . ” [ibid. ¶4].

Just as a release of the mortgagor’s interest was to be obtained, a release of any tenant’s interest in purported trade fixtures would also be obtained and provided to the State in order to allow release of the monies without rendering the State open to further liability. [See ibid.]. It was part of the agreement to settle matters concerning 80 Lake Street, and as a condition precedent it was not met.

Defendant argues that this claim fails to state a cause of action against the State of New York, and that a defense founded on documentary evidence is fully made out. Civil Practice Law and Rules §3211(a) (1). The Defendant first cites to general contract law cases regarding interpretation of a contract pursuant to the so-called four corners rule, and then later refers to the specific document at issue as one evidencing the offer of compensation made by the State of New York in accordance with Eminent Domain Procedure Law §303. Certainly, the terms of the agreement appear to indicate that since Mazur Brothers, Inc. is not “other” than a tenant of the property, any trade fixture claim was encompassed within the agreement. [See Affirmation by J. Gardner Ryan, Assistant Attorney General, Exhibit 1].

As discussed at length in Cronk v State of New York, 100 Misc 2d 680 (Ct Cl 1979), agreements for advance payment are not generally construed as legally binding contracts. This is because it is not a true settlement agreement as such, but rather “a creature of statute.” Cronk v State of New York, supra at 684. Such an agreement “. . . arises only because the parties are unable to reach a settlement . . . [I]t does not possess the prerequisites of a legally binding contract. Essential to a valid contract is a meeting of minds with respect to the nature and extent of the obligations assumed by each party, manifested by an assent to mutually agreeable contract terms . . . The agreement . . . was not the product of a meeting of the minds, since it was not reached through free and open bargaining by the parties. The State . . . was required to offer the claimant a sum equal to 100% of the amount it determined to be the value of the property . . . ” [Ibid. at 684-685].

Indeed, part of the confusion engendered by counsels’ interspersing arguments from one claim to the next has been trying to discern what bearing - if any - any distinction between an advance payment and an agreement of adjustment might mean once matters have proceeded to the procedural cross-roads presented. The Court has concluded that a properly commenced special proceeding is the appropriate vehicle for determining whether claimant is entitled to all or some of the monies on deposit whatever the nomenclature.

The documentary records provided show, significantly, that this claimant, as well as Mazur Brothers, Inc. (the tenant) and The Bank of New York (the mortgagor) were provided with notice in letters dated May 23, 2006, that the monies representing the State’s offer ($1,369,500.00) were deposited by the State Comptroller in its Eminent Domain account, and advised of the necessity of bringing a distribution proceeding in order that the monies be distributed and allocated. [See Affirmation by J. Gardner Ryan, Assistant Attorney General, Exhibit 2]; Eminent Domain Procedure Law §304. Rather than commence such a special proceeding, claimant filed this breach of contract action - containing the alternative relief of a cause of action for appropriation for the State’s partial taking of its property - and has brought on its own cross-motion in response to the present motion to dismiss.

The documentary record establishes without contradiction that the State made the offer of compensation, and the claimant accepted same. Based on the claimant’s avowed reluctance to furnish the assignment requested - indeed the correspondence from the claimant’s attorneys transmitting the document specifically indicates that they were not forwarding the tenant trade fixture assignment requested[4] - the State was then unable to assure the Comptroller of exactly who was entitled to payment under the agreement. As the statute provides, the Attorney General was unable to “. . . make certification of the person or persons legally entitled to the amount payable under an agreement adjusting all legal damages caused by . . . [the] acquisition . . . ” [Eminent Domain Procedure Law §304(E)(1)]. In accordance with the mandatory language of the statute, to wit; “. . . the condemnor shall request the comptroller to, and the comptroller shall, deposit the amount payable under such agreement in a special interest bearing account . . . to be distributed as ordered by the court of claims on application of any person claiming an interest in the amount deposited” [ibid.]; the Comptroller did as required.

Having been apprised of the Attorney General’s inability to determine to whom payment is due, since the State’s view was that the settlement figure encompassed 100% of the value of the property at issue, however said value is divided as between tenants, mortgagors and fee owners, and absent waivers and releases from all interested parties, it was incumbent upon claimant to commence a special proceeding to allow its release. Eminent Domain Procedure Law §304(E); Court of Claims Act §23; Street of Shoppes, LLC v State of New York, UID #2003-013-001, Claim No. 106075, Motion No. SP-103 (Patti, J., January 17, 2003).

The motion to dismiss the within claim, insofar as it alleges a cause of action for breach of contract is hereby granted, and that portion of the claim alleging a cause of action for breach of contract is hereby dismissed. Civil Practice Law and Rules §3211(a) (1). Claimant’s cross-motion for summary judgment is in all respects denied, as the documentary proof establishes that no cause of action for breach of contract is made out, and any judgment based upon the appropriation cause of action would be premature without appropriate exchange and evaluation of appraisals.

May 15, 2007
White Plains, New York

Judge of the Court of Claims

[1]. Four related claims have been filed, noted below. Additionally, counsel have instituted motion practice which at first might have narrowed matters, but has now substantially clouded consideration of the broader arguments, since both counsel for claimants in the four claims, and the assistant attorney general assigned, have submitted papers that include some or all of the claims’ captions, and arguments on different motions under different claim numbers.
[2]. Claim Number 112659 is a claim for damages for the partial taking at 90 Lake Street brought by this claimant; Claim Number 112658 is a trade fixture claim brought by the tenant at 90 Lake Street, Mazur Brothers, Inc.; Claim Number 112661 is a trade fixture claim brought by the tenant at 80 Lake Street.
[3]. In this claim, the taking at issue is described at Cross Westchester Expressway, Stage 3, by maps 650, 656, 657, parcels 963, 969 and 970. [Claim No. 112660, ¶3].
[4]. The letter from counsel for claimant to the State transmitting the agreement reiterates what must have been some discussion outside of the agreement terms, to the effect that claimant would not forward executed assignments of any trade fixture claims. [Affirmation of J. Gardner Ryan, Exhibit 1, Letter dated June 1, 2006 from Robert S. Gottlieb to Martha I. Masker].