New York State Court of Claims

New York State Court of Claims

MILLER v. THE STATE OF NEW YORK, #2000-004-540, Claim No. 98211, Motion No. M-62226


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: John Pickett, Assistant Attorney Generalof counsel
Third-party defendant's attorney:

Signature date:
December 1, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an additional allowance pursuant to EDPL § 701.

The following papers were considered by the Court:

DECISION, Claim No. 98211, Hanifin, J., filed July 31, 2000 1

JUDGMENT, Claim No. 98211, dated October 2, 2000 2

Notice of Motion, filed August 23, 2000 3

Affidavit of Thomas Miller, in support of motion, sworn to

August 18, 2000 4

Affidavit of Eugene Albert, in support of motion, sworn to

August 18, 2000 5

Affidavit of Steven Schneider, in support of motion, sworn to

August 21, 2000 6

Affirmation of Donald Markowitz, Esq., in support of motion,

dated August 21, 2000, with attached exhibits 7

Affirmation of John J. Pickett, Esq., in opposition of motion,

dated September 6, 2000 8

Reply Affirmation of Donald Markowitz, Esq., in support of
motion, dated September 12, 2000 9

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.

This Claim arises from the State's partial appropriation of Claimant's property situated in the Town of Conklin, Broome County. By Decision filed July 31, 2000, this Court awarded Claimant damages in the amount of $383,400.00 (Paper No. 1) and judgment was entered thereon in the amount of $471,936.55, including interest. (Paper No. 2)

Claimant seeks "an additional allowance in the sum of $56,798.00 for actual and necessary costs, disbursements, and expenses, consisting of reasonable attorneys' fees, expert witness fees and disbursements actually incurred by Claimant". (Paper No. 3)

The defendant's initial offer and the advance payment (see, Paper No. 7, ¶ 19) was in the amount of $302,800. (see, Paper No. 4, ¶ 6) The State's proof at trial, however, was that the subject property was damaged as a result of the appropriation in the amount of $299,400.[1] As noted, the Court awarded Claimant the principal sum of $383,400. The Court finds that the award herein is "substantially in excess of the amount of the condemnor's proof" (EDPL ¶ 701) and is substantially in excess of the initial offer. (see, Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705 [2nd Dept. 1990])

Claimant seeks additional costs, disbursements and expenses in the total amount of $56,798 which sum includes his appraiser's fee in the amount of $11,900, without interest, his engineering expert's fee in the amount of $10,980, without interest, and his attorney's fee in the amount of $33,918, including interest. (Paper No. 4, ¶¶ 15, 16 and 17)

Claimant's retainer agreement with counsel provides, in pertinent part:
...Offer: $302,000...

As compensation for your services I (we) agree to pay you one-third of all sums recovered in excess of the above stated initial offer, one-third of such sums as may be received as interest on such excess, as well as one-third of such additional awards as you may be able to recover on my (our) behalf pursuant to Section 701 of the Eminent Domain Procedure Law or any similar statute or Court Rules allowing recovery of costs and expenses under certain circumstances.

I (we) agree that the above fee will be calculated after deducting from such award such sums as I (we) may have advanced or are obligated to pay for such expenses (e.g. appraisal or other expert witness fees) as well as such disbursements advanced by you and for which you are to be reimbursed....

(Paper No. 7, Exhibit B)

The Court finds that the appraiser's fee in the amount of $11,900 is reasonable and necessary "for the condemnee to achieve just and adequate compensation". (EDPL § 701) The appraisal problem presented by this Claim was somewhat complex because of a paucity of comparable sales. As the State's appraiser noted, it was "extremely difficult" to find "truly comparable properties in the Town of Windsor". (Paper No. 1, p 8) That necessitated an effort by both appraisers somewhat far afield in search of comparable sales. That search, in great part, was unsuccessful, but nonetheless the Court has no doubt that it was made and it was time consuming. The Court has reviewed the Claimant's appraiser's affidavit (Paper No. 5) with regard to the services that he performed and find that the work performed by him was necessary and the charge made by him reasonable.

The Court finds that the Claimant's engineering expert's fee in the amount of $10,980 is reasonable considering the amount of work done, but payment thereof in full is not necessary "for the condemnee to achieve just and adequate compensation". (EDPL § 701) Both the Claimant and the State presented engineering proof at the trial of this Claim with regard to projected costs to prepare part of the subject's acreage for commercial use. These analyses were prompted by the fact that the subject presented some challenging topography. The Court finds that the efforts by the Claimant's engineering expert, in this direction, were justified and necessary. However, Claimant's engineer's efforts went considerably beyond this goal. In addition, he prepared a detailed "Potential Site Development Prior to Taking" plan, which contemplated the construction of motels, office buildings, a swimming pool and other accouterments, which was absolutely ridiculous. (see, Paper No. 1, pp 11-12) All of this extensive construction was projected on a site that had access to no public utilities, other than electricity. It is highly unlikely that Claimant's engineering expert prepared this analysis at his own bidding, since he described the end product at the trial as "it's just a - - a sketch is really what it is". (Paper No. 1, p 13) So it was, but it was a detailed sketch, in fact there was more than one, and the preparation thereof undoubtedly occupied quite a bit of his time. Under the circumstances, while it appears to the Court that the engineer's entire fee is reasonable based on the service rendered, a part of that work was ill-advised and unnecessary for purposes of pursuing this Claim, in the sum of $4,800. (cf., Hakes v State of New York, 81 NY2d 392; Wertheimer v State of New York, 231 AD2d 897) After carefully reviewing the affidavit of Claimant's engineering expert (Paper No. 6), the Court finds that the value of his services rendered which were rationally related to the appraisal problem was in the sum of $6,000 and that this sum is reasonable and necessary "for the condemnee to achieve just and adequate compensation". (EDPL § 701)

Claimant's counsel affirms, in pertinent part:

7. The retainer agreement between Claimant and my office calls for a legal fee of one-third of all sums recovered, including interest, in excess of the State's initial offer of $302,800.00.2....

For the benefit of the Claimant, we compute the legal fee based on the net additional recovery, which equals the gross additional recovery less any unreimbursed litigation expenses, such as expert witness fees. The calculation herein of Claimant's legal fee assumes that there will be full reimbursement of Claimant's other litigation expenses under EDPL § 701. To the extent there is not, one-third of any unreimbursed expense will be absorbed by my law firm in the form of a reduced legal fee charged to Claimant

(Paper No. 7, ¶ 7, fn 2)

The Court finds that the retainer agreement between Claimant and Claimant's counsel is fair and reasonable and that payment of attorney's fees pursuant thereto is necessary "for the condemnee to achieve just and adequate compensation". In reaching this conclusion the Court has reviewed the affirmation of Claimant's counsel with regard thereto. (Paper No. 7)

This Court awarded damages in the principal sum of $80,600 over and above the State's initial offer. One-third of that amount is $26,867 (R). The Court has computed interest on that amount, which interest the Court finds necessary for Claimant to achieve just and adequate compensation, at the statutory rate from the date of the appropriation, March 27, 1998 to the date of this Decision in the amount of $6,486 (R). (cf., Rodriguez v New York City Housing Authority, 91 NY2d 76)[2] The Court therefore awards attorney's fees in the amount of $33,353.

While logic and common sense lend considerable support to the State's counsel's argument that this motion is premature, since it was filed prior to the time that the time to appeal the judgment herein had past, (Paper No. 8, ¶ 4) the argument is legally unavailing. (General Crushed Stone Company v State of New York, 93 NY2d 23) In any event, the time to appeal has now almost certainly past. (CPLR § 5513)

In light of the foregoing, it is

ORDERED, that Motion No. M-62226 is GRANTED, in part; and it is

ORDERED, that judgment be entered in favor of the Claimant for an additional allowance in the amount of $51,253 pursuant to EDPL § 701, without further interest.

December 1, 2000
Binghamton, New York

Judge of the Court of Claims

This result was dictated, in part, because the parties stipulated that the after value of the subject property was $7,000.
Although State's counsel argues that interest should not be awarded on the attorney's fee, (Paper No. 8, ¶ 27) he does not argue that the statutory rate is not fair and reasonable. Although he views the statutory rate high, he supplies no alternative rate or analysis. Rather, he simply , bemoans the fact that interest is paid, in his view, "by virtue of a generous statute". (Paper No. 8, ¶ 10)