CLINTON COUNTY v. THE CHAMPLAIN TELEPHONE COMPANY, ALAN G. HEVESI AS THE COMPTROLLER OF THE STATE OF NEW YORK, ELLIOT SPITZER AS THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, NEWCHANNELS CORP. NOW KNOWN AS TIME WARNER COMMUNICATIONS, VILLAGE OF ROUSES POINT and THEODORE ZACHARY, #2007-015-183, Claim No. NONE, Motion No. SP-112
Petition for an order of distribution pursuant to EDPL § 304 (E) was granted.
COUNTY OF CLINTON
Claimant short name:
Footnote (claimant name) :
THE CHAMPLAIN TELEPHONE COMPANY, ALAN G. HEVESI AS THE COMPTROLLER OF THE STATE OF NEW YORK, ELLIOT SPITZER AS THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, NEWCHANNELS CORP. NOW KNOWN AS TIME WARNER COMMUNICATIONS, VILLAGE OF ROUSES POINT and THEODORE ZACHARY
Petitioner commenced this proceeding by order to show cause pursuant to EDPL § 304(E) for an order of distribution relative to an advance payment held in an eminent domain account number W058248. As of October 3, 2003 the balance in the account was $7,099.75. Petitioner alleges that on or about June 19, 2001 the parcel of property bearing tax map number 20.18-2-2 located in the Village of Rouses Point was acquired by the petitioner for non-payment of taxes. It is alleged that the former owner of the property, Theodore Zachary, subsequently commenced an action to regain title to the property, which was determined in favor of the petitioner. It is further alleged that in December 2002 the New York State Department of Transportation commenced an appropriation of a portion of the property for the purpose of widening State Route 11, making an offer of settlement in the amount of $7,000. The property was sold at public auction on June 23, 2004.
In order to obtain the funds in the eminent domain account, the Attorney General advised the petitioner of the need to commence this distribution proceeding and identified the names and addresses of interested parties as follows:
1. The Champlain Telephone Co.- possible public utility easement.
2. Comptroller of the State of New York- depository of the funds at issue.
3. Eliot Spitzer, Attorney General- necessary party pursuant to EDPL § 304(E) and Court of Claims Act § 23.
4. Newchannels Corp., now known as Time Warner Communications - possible public utility easement.
5. Village of Rouses Point- possible public utility easement.
6. Theodore Zachary- possible fee interest.
The petitioner provided affidavits demonstrating service of the order to show cause and the petition on all of the aforementioned parties. All were served personally except the Attorney General who was served by Certified Mail, Return Receipt Requested only, Champlain Telephone Co., which was served pursuant to BCL § 306, and Theodore Zachary, who was served by certified mail, return receipt requested and by publication pursuant to Court of Claims Act § 23 and Court of Claims Act § 141.
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".
The uncontroverted allegations in the verified petition sufficiently established the petitioner's superior interest to the funds. The only response to this proceeding is from the Comptroller and the Attorney General (hereinafter "respondents"). In their answer to the petition, the respondents admitted that an offer of settlement was made for the appropriation of property and that as of October 3, 2003 the balance of the settlement funds deposited in eminent domain account number W058248 equaled $7,099.75. In addition, the respondents admitted that the petitioner was advised of the identity of all interested persons in the proceeding and that a distribution proceeding must be commenced in order for the funds to be released. Respondents raised two "objections" in their answer: First, that the relief should not be granted unless "petitioner demonstrates that all interested parties have been served in accordance with the requirements imposed by § 23 of the Court of Claims Act" and, second, that "the Court should provide in its order of distribution that the payment of any monies from the fund as directed by the order be stayed until after the final adjudication of any appeals or the expiration of the time to appeal from the order by any person or party aggrieved thereby" and that for this purpose the Court should require that the affidavits of service be filed with the Clerk.
The petition demonstrates the apparent absence of any superior interest to the advance payment funds and the affidavits of service establish that all interested persons were properly served with the order to show cause and petition. Therefore, the Court, having obtained jurisdiction, hereby grants the petition and the Comptroller is directed to pay the balance on deposit in the eminent domain account to the petitioner, County of Clinton, no sooner than thirty (30) days after the service of this decision and order, with notice of entry, upon all interested parties listed 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.
April 24, 2007
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
Verified petition of Dennis D. Curtin dated December 14, 2006;
Verification of Janet Duprey, sworn to December 14, 2006;
Affidavit of publication of Barbara Harris sworn to January 22, 2007;
Affidavit of service of Michael J. Gadway on the Village of Rouses Point sworn to January 3, 2007;
Affidavit of service of Justin R. Meyer on Theodore Zachary sworn to January 17, 2007;
Affidavit of service of Michael J. Gadway on Time Warner Communications sworn to January 3, 2007.
Affidavit of service of Robin Brandow on The Champlain Telephone Company sworn to January 3, 2007;
Affidavit of service of Justin R. Meyer on Alan G. Hevesi sworn to December 28, 2006;
Affidavit of service of Christopher Warner on The New York State Comptroller sworn to January 16, 2007;
Affidavit of service of Justin R. Meyer on Elliot Spitzer, Attorney General, sworn to December 28, 2006;
Verified answer of Donald E. Shehigian dated and verified January 23, 2007.
11. EDPL 304(E)(1) provides for a proceeding in the Court of Claims for the distribution of an offer of payment for an appropriation and incorporates the procedure set forth in Court of Claims Act § 23 for the distribution of the funds. Court of Claims Act § 23 provides for service on a non-resident of the state by publication as provided in Court of Claims Act § 14. Court of Claims Act § 14 provides for service by publication in one newspaper published in the county where such land is located, once in each of four successive weeks. As alleged in the petition, the former owner of the premises, Theodore Zachary, is a non-resident of the state and, the affidavit of service reflects that service on Mr. Zachary by publication was properly performed in accordance with Court of Claims Act § 14.