New York State Court of Claims

New York State Court of Claims

PECKHAM v. THE STATE OF NEW YORK, #2000-009-428, Claim No. 82232, Motion No. M-61720


Claimant's application for an additional allowance pursuant to EDPL § 701 was granted.

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):

nicholas v. midey, jr.
Claimant's attorney:
BY: Sidney Devorsetz, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
September 18, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an additional allowance pursuant to EDPL, § 701.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of Sidney Devorsetz, Esq., with Exhibits, including Affidavit of Eugene Albert and Affidavit of John Peckham 1,2

Affirmation in Opposition of Roger B. Williams, Esq., Assistant Attorney General 3

Affirmation in Support (Reply) of Gerald J. Mingolelli, Jr., Esq., with Exhibits, including Supplemental Affidavit of Eugene Albert 4

Filed Papers: Claim, Decision filed March 3, 2000.

In 1990, the State appropriated property owned by the claimant in the Town of Bedford, Westchester County. The date of vesting was August 2, 1990, and a claim was subsequently filed with the Clerk of the Court of Claims on February 6, 1991. The State made an initial offer to claimant of $51,900.00, which was rejected by claimant, but was subsequently paid to claimant as an advance payment. The Decision of this Court, dated February 16, 2000, awarded claimant the sum of $448,000.00, with interest at the rate of 9% from the date of taking on August 2, 1990.

EDPL §701 permits the Court, in its discretion, to award an additional allowance for actual and necessary costs, disbursements, and expenses incurred in connection with condemnation proceedings. The allowance, however, shall be made only where (1) the condemnation award is substantially in excess of the condemnor's proof, and (2) the Court deems the additional allowance necessary to achieve just and adequate compensation.

The appropriate measure as to whether the award is substantially in excess of the condemnor's proof is the difference between the State's initial offer and amount awarded (see, First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, aff'd 81 NY2d 392).

In this claim, the damages award exceeded the amount offered by the State by $396,100.00. The award was approximately 750% greater than the State's original offer. On the record, therefore, the Court finds that the award is substantially in excess of defendant's proof.

By this motion, claimant seeks an additional allowance for attorneys' fees, appraisal fees, and other actual disbursements.

In this application, claimant seeks the sum of $27,785.00 for appraisal fees. This amount includes the appraiser's fee for the appraisal, his appearance and testimony in Court for three days of trial, and also includes travel expenses to and from Syracuse on two different occasions for the trial. In opposition to this application, defendant's attorney makes reference to the affidavit of John Peckham, president of claimant Peckham Materials, Corp., (see Exhibit D to Items 1,2), which indicates that the sum of $23,130.00 was paid for appraisal services, and not $27,785.00, as set forth in the affidavit of Eugene Albert (see Exhibit C to Items 1,2). In the supplemental affirmation, however, claimant's attorney addressed this discrepancy in the amounts claimed. The trial of this claim was not completed within the two days initially allotted. At the conclusion of the second day, the trial was adjourned and rescheduled for completion at a later date. Claimant's attorney confirmed that the difference of $4,655.00 was directly attributable to trial preparation and testimony given at the continuation of this trial. The amount of $23,130.00 therefore did not include Mr. Albert's bill for services provided at the subsequent continuation of the trial proceedings. Claimant has therefore established to the satisfaction of this Court that the sum of $4,655.00 remains due and owing to claimant's appraiser, in addition to the $23,130.00 previously charged to and paid by claimant.

The Court relied upon claimant's appraisal in reaching its decision on this claim, and claimant's appraiser testified in Court and was present during the three days of trial testimony. The Court therefore finds that the total expense of $27,785.00 for appraisal fees and services was reasonable and necessary to prosecute this claim.

With this motion, claimant's attorney has also submitted documentation setting forth actual disbursements of $1,333.07, which amount has not been disputed (see Exhibit B to Items 1,,2).

Claimant also seeks the sum of $252,779.00 for legal fees. In addition to its opposition to this motion, defendant has also specifically questioned the computation of these fees by claimant's attorneys.

By retainer agreement, claimant agreed to pay attorney fees in the amount of one-third of any amount in excess of the advance payment, including interest, after payment of the appraisal fees. It is the experience of this Court that such a contingent fee arrangement is customary for this type of litigation. Although the Court is not required to accept this fee arrangement between attorney and client to determine what is reasonable and necessary to achieve just compensation, the Court in this claim concludes that the contingent fee arrangement is fair and reasonable and was necessarily incurred.

The difference in the amounts computed by counsel for both parties is essentially attributable to the calculation of interest. Defendant's attorney calculated interest from August 2, 1990 (the date of taking) to February 16, 2000 (the date of the Court's award). Claimant's attorney calculated interest from August 2, 1990 (the date of taking) to June 21, 2000 (the return date of this application). The decision of this Court had directed interest to be paid at the rate of 9% from August 2, 1990 to the date of the decision, and thereafter to the date of judgment, which was entered on April 18, 2000. Claimant's attorney continued to compute interest at the rate of 9% up to the return date of this motion, pursuant to CPLR § 5003, since claimant had not yet received payment on the judgment.

The Court determines that the calculations made by claimant's counsel in his reply affirmation (see Item 4) are reasonable, and therefore the Court will allow attorneys' fees in the amount of $252,779.00, as set forth therein.

Based on the above, the Court therefore determines that the appraisal fees ($27,785.00), legal fees ($252,779.00) and disbursements ($1,333.07) were all reasonable and necessary expenditures by the claimant required to achieve just and adequate compensation, in the total amount of $281,897.07.

Therefore, in view of the foregoing, it is hereby

ORDERED, that Motion No. M-61720 is hereby GRANTED, and claimant is awarded the total sum of $281,897.07 as an additional allowance, without interest on said amount; and it is further

ORDERED, that the Clerk of the Court is hereby directed to enter judgment in accordance with this decision and order.

September 18, 2000
Syracuse, New York
Judge of the Court of Claims