Opinion
# 2014-045-024 Claim No. 124016 Motion No. M-84968
07-28-2014
KATSAROS BROTHERS REALTY LLC v. THE STATE OF NEW YORK
Flower, Medalie & Markowitz, Esqs. By: Edward Flower, Esq. Hon. Eric T. Schneiderman, Attorney General By: James M. Burke, Assistant Attorney General
Synopsis
Claimant's motion to compel the defendant to immediately pay the advanced payment in an appropriation case.
Case information
| UID: | 2014-045-024 |
| Claimant(s): | KATSAROS BROTHERS REALTY LLC |
| Claimant short name: | KATSAROS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124016 |
| Motion number(s): | M-84968 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Flower, Medalie & Markowitz, Esqs. By: Edward Flower, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: James M. Burke, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 28, 2014 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Affirmation with annexed Exhibits A-F, Defendant's Affirmation in Opposition with annexed Exhibits 1-3, Claimant's Reply Affirmation and the filed Claim.
Claimant, Katsaros Brothers Realty, LLC, has brought this motion seeking an order directing defendant, the State of New York, to pay to claimant the advanced payment together with interest. Claimant is also seeking an order awarding it sanctions against defendant in the amount of $3,000.00 for the costs and value of services rendered in making this motion.
The underlying action in this matter concerns the appropriation of a portion of claimant's property by defendant on February 20, 2014. The property was improved at the time by a bank building which was leased from claimant by the Roslyn Savings Bank, a division of New York Community Bancorp, Inc. (Roslyn Savings Bank).
At some point between December 5, 2013 and March 7, 2014, the claimant and defendant reached an agreement wherein claimant would receive from defendant a sum certain as an advance payment against such sums as may be ultimately awarded to claimant in this proceeding. The parties further agreed that such advance payment will have added thereto interest at the rate of 9% per annum from the title vesting date of February 20, 2014 until actual payment.
In a letter dated March 3, 2014, defendant requested that it be provided with certain documents from claimant in order to process the advance payment. At issue in this motion, defendant requested an assignment of claim and release to be executed by the Roslyn Savings Bank. In response claimant submitted to defendant a copy of the lease agreement to Roslyn Savings Bank in which claimant points to page 9 of the agreement paragraph "Fifth" headed "Condemnation." Claimant believes that this section of the lease operates as an assignment of any interest that Roslyn Savings Bank may be deemed to have had in the condemnation award to the claimant and which would thus permit the advance payment to be paid to the claimant without further documentation from Roslyn Savings Bank.
A copy of the assignment and release form was not provided by either claimant or defendant as part of the motion papers.
On March 24, 2014, claimant received a letter from defendant dated March 20, 2014 stating that notwithstanding the lease provision defendant still must be presented with an assignment of claim and release from Roslyn Savings Bank before it can issue payment of the advance payment to claimant.
Claimant avers that the language of paragraph "Fifth" as to who is entitled to the condemnation award is clear and unambiguous and actually constitutes an assignment by Lessee (Roslyn Savings Bank) to Lessor (claimant) of any and all condemnation awards with the exception of Lessee's trade fixtures. Claimant argues that defendant's position to the contrary is arbitrary, capricious and abusive. Claimant also contends that the taking did not involve the building or its contents and there is no claim for trade fixtures. Claimant states that defendant's calculation of damages and offer of advance payment did not include any sum for trade fixtures.
Defendant states that it is ready willing and able to make the advance payment once claimant provides the required assignment of claim and release form executed by Roslyn Savings Bank that defendant enclosed with its original processing documents sent to claimant. In the alternative defendant suggests that it may have no other option other than to conclude that a conflict exists and that it will be required to deposit the advance payment funds pursuant to EDPL 304 (E) (1).
The Court of Claims is a court of limited jurisdiction and the relief requested, compelling defendant to issue the advance payment at this time, is outside the scope of that jurisdiction (Court of Claims Act § 9; see Matter of Herricks Fore Plan, Inc. v State of New York, 58 AD3d 904 [3d Dept 2009]).
As opposed to an order after a special proceeding is held pursuant to CCA § 9 (12).
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In regard to claimant's motion for sanctions, 22 NYCRR 206.20 states that the provisions of Part 130 of the Rules of the Chief Administrator of the Courts shall be applicable to the Court of Claims. Pursuant to 22 NYCRR 130-1.1 (a), "[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct . . . . In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct."
22 NYCRR 130-1.1 (c) defines frivolous conduct as conduct that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; conduct that is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or conduct that asserts material factual statements that are false. "In determining whether the conduct was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (22 NYCRR 130-1.1 [c]).
Claimant has failed to show that defendant's conduct was frivolous. Thus, the Court is disinclined to impose sanctions at this time.
Therefore, for the foregoing reasons, claimant's motion is denied.
July 28, 2014
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims