Opinion
# 2015-045-011 Claim No. None
03-31-2015
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
Special proceeding seeking an order for the distribution of the sum deposited into an eminent domain account under EDPL §304(E).
Case information
UID: | 2015-045-011 |
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): | None |
Motion number(s): | SP-175 |
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: | March 31, 2015 |
City: | Hauppauge |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
The following papers were read and considered on this Order To Show Cause: Petitioner's Order To Show Cause undated and filed February 13, 2015; Petitioner's Verified Petition with Annexed Exhibits A-I as well as annexed Affidavits of Service, Respondent's Affirmation in Opposition with annexed Exhibits 1-4 filed March 19, 2015, Petitioner's Affirmation in Reply filed March 20, 2015, Petitioner's Affidavit dated March 25, 2015 with annexed Exhibit A and Petitioner's Affidavit dated March 27, 2015 with annexed Exhibits A-C.
Petitioner, Katsaros Brothers Realty, LLC, seeks an order (SP-175) for the distribution of the sum deposited (the advance payment) into the Eminent Domain Account under EDPL § 304 (E) pursuant to Court of Claims Act (CCA) § 23, for the partial appropriation and temporary easement of portions of petitioner's property and improvements for project Hauppauge-Port Jefferson, Town of Smithtown, County of Suffolk, State of New York. The subject property address is 719 Smithtown Bypass, Smithtown, New York 11787 and more specifically described by the official appropriation maps on Map 1266FEE, Parcel 1316 and Map 1267TE, Parcel 1317.
It is uncontroverted that at the time of the appropriation, petitioner was the sole owner of the premises appropriated. However, the property was improved at the time by a bank building which was leased from petitioner by the Roslyn Savings Bank, a division of New York Community Bancorp, Inc. (Roslyn Savings Bank). A dispute arose wherein respondent determined that Roslyn Savings Bank may have had a valid interest in improvements made to the subject property. As a result on April 9, 2014, respondent deposited the advance payment, which represented its offer for the acquisitions in this matter, into an Eminent Domain Account pursuant to EDPL § 304 (E).
Petitioner commenced this distribution proceeding pursuant to EDPL § 304 (E) (1) and CCA § 23. Respondent identified several parties with a potential interest in the subject property as follows: Petitioner (assignee of claim); Roslyn Savings Bank (lessee) and the Attorney General's Office (a necessary party pursuant to EDPL § 304[E] and Court of Claims Act § 23).
EDPL 304 (E) (1) sets forth the procedure for the payment of advance appropriation funds into an interest bearing account when the Attorney General determines that there is a conflict of title or a conflict otherwise arises so that he is unable to certify the persons legally entitled to the amount payable. The funds may then be distributed "as ordered by the court of claims on application of any person claiming an interest in the amount deposited." After the funds are deposited, the statute requires that the Attorney General "notify all parties claiming an interest in the fund that the amount payable thereunder has been deposited and is subject to an application by an interested person or persons to a distribution proceeding." The statute incorporates the procedure set forth in Court of Claims Act § 23 for the distribution of deposited Court of Claims awards. Section 23 of the Court of Claims Act requires a special proceeding on notice to all interested persons to show cause why a final order of distribution should not be made.
A hearing was held on March 23, 2015 wherein Frederick Whittaker, a representative of Roslyn Savings Bank, testified that the bank may have a claim for the signage on the property in front of the bank. The hearing was adjourned until March 31, 2015 for further information to be presented to the Court. At the March 31, 2015 hearing the Court was presented with a signed Stipulation of Release from Roslyn Savings Bank wherein the bank waived its rights to any condemnation monies to be paid by respondent to petitioner related to this matter.
Therefore, the Court, having obtained jurisdiction, hereby grants the petition and the Comptroller is directed to pay petitioner the balance on deposit in the eminent domain account, no sooner than thirty (30) days after the service of this Decision and Order, with notice of entry, upon all interested parties stated in the order to show cause. The petitioner shall file the affidavits of service of the Decision and Order with notice of entry with the Clerk of this Court.
March 31, 2015
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims