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.