Opinion 97 - 7


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

ABANDONED AND LOST PROPERTY -- Money (court and trust funds)

COUNTY TREASURER -- Powers and Duties (unclaimed court and trust moneys)

STATE COMPTROLLER -- Powers and Duties (receipt of unclaimed court and trust moneys)

ABANDONED PROPERTY LAW, §§600, 1404: Moneys held by a county treasurer which were directed by court order to be deposited into the court and trust fund and which have been held beyond the five year dormancy period set forth in Abandoned Property Law, §600 should be transferred to the Comptroller pursuant to article 6 of the Abandoned Property Law, even if the court order provides that the moneys may be disbursed only upon further court order.

You indicate that the county treasurer's office holds funds which were directed by court order to be deposited into the court and trust fund and that some of these funds are held beyond the five year dormancy period set forth in section 600 of the Abandoned Property Law. Your particular concern involves a provision, found in many court orders directing that moneys be paid into court, which provides that the moneys may be disbursed only upon further order of the court. You have asked whether such clauses prohibit or otherwise preclude the county treasurer from turning over to the State Comptroller court and trust funds which have been held by the county treasurer for five years, without a further court order.

Section 600(1)(a) of the Abandoned Property Law in general governs moneys paid into court(1) and provides in relevant part as follows:

1. The following unclaimed property shall be deemed abandoned property:

(a) Any moneys . . . paid into court, which, . . . shall have remained in the hands of any county treasurer, or the commissioner of finance of the city of New York, for five years, together with all accumulations of interest or other increment thereon, less such legal fees as he may be entitled to.(2)

Section 1404(1) of the Abandoned Property Law provides in relevant part as follows:

1. The care and custody, subject only to the duty of conversion prescribed in section fourteen hundred two of this chapter, of all abandoned property heretofore paid to the state, . . . is hereby assumed for the benefit of those entitled to receive the same, and the state shall hold itself responsible for the payment of all claims established thereto pursuant to law, less any lawful deductions, which cannot be paid from the abandoned property fund.

Thus, the express language of section 600(1)(a) seems to require that these funds be treated as unclaimed property without any further action by the court. Furthermore, the transfer of the funds from the county treasurer to the State Comptroller does not make the State the owner of such funds but rather the funds are placed in the custody of the State for the benefit of the entitled party (see, e.g. In Re Menschefrend's Estate, 283 App Div 463, 128 NYS2d 738, affd 8 NY2d 1093, 208 NYS2d 253). As a result, the transfer to this Office of moneys paid into court pursuant to the Abandoned Property Law does not divest the persons entitled to the funds of their rights to the property nor does it affect the court's jurisdiction over the moneys. In fact, subdivision 2 of section 1406 of the Abandoned Property Law, which relates to claims for moneys received by the Comptroller pursuant to section 600(1)(a) of the Abandoned Property Law, provides generally that entitlement to the money may be established only on order of the Court (which had jurisdiction of the underlying matter).(3) Accordingly, such funds should be transferred to this Office in accordance with article 6 of the Abandoned Property Law.

February 6, 1997
Richard W. Breslin, Esq., County Attorney
County of Chenango

1. Subdivision 3 of this section excludes funds held for the benefit of an infant until the infant reaches age 18.

2. The last phrase of paragraph (a) of subdivision 1 of section 600 of the Abandoned Property Law authorizes the county treasurer to deduct the fee to which he or she is entitled pursuant to section 8010 of the Civil Practice Law and Rules, before transferring the funds to the State Comptroller.

3. Paragraph (b) of subdivision 2 of section 1406 permits the Comptroller to pay claims for such funds without a court order where the amount of the claim is less than $1500 where the identity of the entitled person is clear on the record.