New York State Court of Claims

New York State Court of Claims
MERCURIO v. THE STATE OF NEW YORK, # 2017-041-080, Claim No. 125488, Motion No. M-90975


State's motion for entry of judgment in its favor pursuant to EDPL 304(H) is granted.

Case information

UID: 2017-041-080
Claimant(s): MARK A. MERCURIO
Claimant short name: MERCURIO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125488
Motion number(s): M-90975
Cross-motion number(s):
Claimant's attorney: NONE
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Michele M. Walls, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 14, 2017
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pursuant to a trial decision filed July 20, 2017, the Court awarded claimant damages in the amount of $225,000 against defendant as the result of the appropriation of claimant's real property.

The defendant moves, pursuant to EDPL 304(H), for an order awarding it judgment in the sum of $5,700 from claimant, representing the difference between the defendant's advance payment of $230,700 and the Court's award of $225,000. Defendant also seeks statutory interest from January 10, 2013, the date payment was made to claimant. Claimant has not opposed defendant's application.

EDPL 304 (H) provides:

"When an advance payment to a condemnee made pursuant to this section by the condemnor exceeds the award of the court for that property, the court shall, on motion, enter judgment in favor of the condemnor for the amount of such excess and appropriate interest. Such motion shall be made on notice served within thirty days after delivery to the condemnor of the decision of the court making the award."

In addition, the parties "Agreement For Advance Payment" provided that if the amount awarded by the Court as claimant's appropriation damages, after trial, is less than the defendant's advance payment to claimant then the "Court shall direct the Clerk to enter judgment dismissing the claim and awarding to the State the difference between the awards as found by the Court and the amount of said advance payment with appropriate interest."

Here, the defendant's advance payment exceeded the Court's award by $5,700. Thus, by operation of EDPL 304(H), and the terms of the advance payment agreement, the defendant is entitled to judgment with interest.

Accordingly, the defendant's motion is granted. The Clerk is directed to enter judgment in favor of the State in the amount of $5,700 plus statutory interest from January 10, 2013, through the date of this decision and order, and with interest thereon to the date of the entry of judgment.

Let judgment be entered accordingly.

November 14, 2017

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion, filed August 21, 2017;

2. Affirmation of Michele M. Walls, dated August 18, 2017, and attached exhibits.