New York State Court of Claims

New York State Court of Claims

FALANK v.THE STATE OF NEW YORK, #2000-004-533, Claim No. 98692, Motion No. M-61862


Additional allowance under EDPL § 701 allowed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
FLOWER, MEDALIE & MARKOWITZBY: Donald Markowitz, Esq., of counsel
Defendant's attorney:
BY: Martin RowleyAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 28, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for an additional allowance pursuant to EDPL § 701.

The following papers were considered by the Court:

DECISION, Claim No. 98692, HANIFIN, J., filed
May 23, 2000 1

JUDGMENT, Claim No. 98692, dated July 20, 2000 2

Notice of Motion, filed June 13, 2000 3

Affidavit of Eugene Albert, in support of motion, sworn to
June 5, 2000, with attached exhibits 4

Affidavit of Joseph J. Falank and Carolyn L. Falank, in support of motion,

sworn to June 7, 2000 5

Affirmation of Donald Markowitz, Esq. in support of motion,
dated June 8, 2000 6

Affirmation[1] of Martin Rowley, AAG, in opposition to motion,
filed June 19, 2000, with attached exhibits 7

Reply Affirmation of Donald Markowitz, Esq., in support of motion,
dated July 3, 2000, filed July 5, 2000, with attached exhibits 8

This Claim arises from the Defendant's partial appropriation of Claimants' premises located in the Town of Windsor, Broome County, in a proceeding entitled "BINGHAMTON-WINDSOR, PART 3 STATE HIGHWAY NO. 5148 BROOME COUNTY". By Decision filed May 23 2000, this Court awarded Claimants $163,600.00, (which sum included an award for appropriated fixtures in the amount of $6,700.00), plus interest (Paper No.1) and Judgment was entered thereon for the amount of $195,517.20, including interest (Paper No. 2).

Claimants seek an additional allowance for attorney's fees and appraiser's fees (Paper No. 3). EDPL § 701 provides:
In instances where the order or award is substantially in excess of the amount of the condemnor's proof and where deemed necessary by the court for the condemnee to achieve just and adequate compensation, the court, upon application notice and an opportunity for hearing, may in its discretion, award to the condemnee an additional amount, separately computed and stated, for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees actually incurred by such condemnee. The application shall include affidavits of the condemnee and all parties that have incurred expenses on the condemnee's behalf, setting forth inter alia the amount of the expenses incurred.

The Defendant's initial offer and advance payment was in the amount of $115,000.00 (Paper No. 5, ¶ 5). As noted, the Court awarded Claimants a total of $163,600.00, plus interest, which sum included the fixture award. The fixture award in the amount of $6,700.00 was based solely on the State's fixture appraiser's estimate, the Claimant's representatives apparently having overlooked the subject. Thus, the spread to be weighed here is $41,900.00, not $48,600.00. Nonetheless, the Court finds that $41,900.00 is more than 36 percent greater than the advance payment, and is "substantially in excess of the amount of the condemnor's proof" (EDPL § 701), and is substantially in excess of the initial offer (cf, Matter of New York City Tr. Auth. [Superior Rattan & Furniture Co.], 160 A D2d 705; Scuderi v State of New York, 184 AD2d 1073).

Claimants seek an additional allowance in the amount of $9,970.00 for appraiser's fees (Paper No. 5, ¶ 15). In support of this motion for an additional allowance, Claimants have submitted the affidavit of the appraiser, Eugene Albert, wherein he provides a general breakdown of his services (Paper No. 4, Exs. C-D). Mr. Albert describes the following charges:
Summary Appraisal Report Fee $5,500
Retainer $2,750
Balance Due $2,750

(Paper No. 4, Ex C [emphasis in original])

Pre-Trial preparation -2 hours @150/hr. $ 300.00

Travel time to Binghamton, N.Y. & return
6 hours @ $150.00/hr x 50% 450.00
Appearance-NYS Court of claims on 12/14/99- 1 day @ $3,500 3500.00

Travel Expense - 400 miles @ 30 ¢ $120.00
Hotel - 1 night 100.00 220.00
Total Due this invoice --------- -----------

(Paper No. 4, Ex D)

The Court finds that the appraiser's fees in the amount of $9,970.00 are reasonable and necessary "for the condemnee to achieve just and adequate compensation" (EDPL 701).

Claimants also seek an additional allowance of $19,845.00 for attorney's fees. (Paper No. 5, ¶ 17). Claimants Falank aver that they agreed to a retainer agreement of one-third of the amount recovered in excess of the advance payment plus interest on that amount. (Paper No. 5, ¶ 7). Although the Court is not required to accept the terms of the fee arrangement between an attorney and a Claimant (see, Cassel v State of New York, Court of Claims, SILVERMAN, J., Claim No. 78296, filed 6/4/91), the Court finds that the one-third percentage retainer fee is reasonable, with one priviso.

According to the Court's calculations, one-third of the principal amount recovered, not including the fixture value, in excess of the advance payment is $13,967.00 (R). The Court computes the amount of interest for the period from the date of the appropriation to the date of entry of judgment to be $2,682.81.

Accordingly, this Court finds that an additional amount of $16,649.81 in attorney's fees is appropriate to "achieve just and adequate compensation". That sum, when added to the appraisal fee ($9,970) totals $26,619.81.

In light of the foregoing, it is

ORDERED that Motion No. M-61862 is GRANTED in part; and it is

ORDERED that Judgment be entered in favor of Claimants for an additional allowance amount of $26,619.81 pursuant to EDPL § 701, without interest.


September 28, 2000
Binghamton, New York

Judge of the Court of Claims

This affirmation is not dated.