State's motion pursuant to EDPL 304(H) for recoupment of the amount that the Advance Payment exceeded the Court's award. Seeks the overpayment plus 9% statutory interest.
|Claimant(s):||NOCO ENERGY CORP.|
|Claimant short name:||NOCO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||PHILIP J. PATTI|
|Claimant's attorney:||WOLFGANG & WEINMAN
BY: MICHAEL G. WOLFGANG, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: DONALD E. SHEHIGIAN, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 10, 2010|
|See also (multicaptioned case)|
On April 30, 2010, the following papers were read on motion by Defendant for an order pursuant to EDPL 304(H) for recoupment of an overpayment plus interest:
Notice of Motion, Affirmation and Exhibits Annexed
Filed Papers: Claim; Trial Decision and Judgment
On December 28, 2007, a trial decision in this claim was filed, with judgment having been entered on February 11, 2008. On January 11, 2008, the Defendant filed the instant motion seeking recompense with appropriate interest for the overpayment of $22,350.00 representing the difference between the amount paid pursuant to an Agreement for Advance Payment (Exhibit A to the motion) and the amount I awarded in the aforesaid trial decision (Eminent Domain Procedure Law §304[H]).
The motion was originally returnable on March 19, 2008. However, Claimant filed a Notice of Appeal in this matter, and, at the request of the Defendant, the matter was adjourned sine die until the determination of the appeal. By Memorandum and Order entered November 13, 2009, the Appellate Division, Fourth Department, unanimously affirmed the judgment (67 AD3d 1354).
By letter dated November 18, 2009, the motion was then made returnable on January 20, 2010. By letter dated January 19, 2010, the motion was adjourned to February 17, 2010. By letter dated February 19, 2010, the motion was adjourned to and deemed submitted on March 3, 2010.
All the adjournments after the appeal had been decided were premised in anticipation of a possible stipulation between the parties resolving the motion. However, all adjournments and extensions of time have elapsed with neither a stipulation nor any papers in opposition, despite a further informal extension until April 30, 2010.
The undisputed facts are that on January 26, 2000, the parties entered into an Agreement for Advance Payment with Claimant to receive $640,000.00 plus interest with respect to the appropriation (Exhibit A). A check in the amount of $649,920.00, representing the principal amount plus accrued interest, dated May 18, 2000, was issued to Claimant.
In my trial decision, as affirmed, I determined that Claimant suffered damages in the amount of $617,650.00. The Defendant, pursuant to Section 304(H) of the Eminent Domain Procedure Law, seeks an award for the overpayment to Claimant in the amount of $22,350.00 with interest thereon from May 18, 2000, the date the check for the Advance Payment was issued to Claimant.
There being no opposition to the motion, and there being no question of the entitlement of the Defendant to such recoupment, the motion is granted in its entirety. The Clerk of the Court is directed to enter judgment in favor of Defendant in the amount of $22,350.00, plus simple interest at 9% per annum from May 18, 2000 through the date of the decision herein with interest thereon to the date of entry of the judgment (see CPLR 5001-5003; Court of Claims Act §19).
May 10, 2010
Rochester, New York
PHILIP J. PATTI
Judge of the Court of Claims