New York State Court of Claims

New York State Court of Claims

VENTRE v. THE STATE OF NEW YORK, #2000-009-447, Claim No. 88013, Motion No. M-61718


Claimant's motion for an additional allowance pursuant to EDPL § 701 granted, in part.

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: John J. Pickett, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
December 11, 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, Affidavit of John R. Mako, Jr., Affidavit of Martin Ventre, with Exhibits 1,2,3,4

Affirmation in Opposition, with Exhibits 5

Supplemental Reply Affirmation in Support 6

Filed Papers: Claim, Decision filed February 23, 2000

On February 10, 1993, the State appropriated property owned by claimant in the City of Syracuse, Onondaga County. The State made an original offer of $9,500.00, which was rejected by claimant. Claimant subsequently filed a claim with the Clerk of the Court on September 27, 1993, seeking damages in the amount of $130,000.00. In his appraisal, claimant's appraiser calculated damages at $50,000.00. Following a trial, this Court rendered a Decision, filed on February 23, 2000, assessing damages for the appropriated property at $18, 700.00, with interest at the rate of 9% per year from February 10, 1993 to August 10, 1993, and from September 27, 1993 to the date of the Decision and thereafter to the date of entry of judgment.

In this motion, claimant seeks an additional allowance for attorney's fees of $4,971.00, expert witness fees of $5,250.00, and disbursements in the amount of $635.05.

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 Court awarded damages in the amount of $18,700.00, compared to the State's original offer of $9,500.00. Although the award by the Court was only $9,200.00 greater than the initial offer, the award was approximately 97% higher than such original offer.

Therefore, this Court must first determine whether the award made in this claim is substantially in excess of the State's initial offer. In making this determination, courts have considered the percentage of increase above the initial offer and/or the dollar amount of the increase. In this case, although the increase in the Court's award over the initial offer, in actual dollars, may not necessarily be viewed as substantial, the approximate 97% increase of the award over the initial offer must be considered substantial. The Court therefore finds that the award made in this claim is substantially in excess of the offer within the meaning of EDPL § 701. As a result, the Court must also determine whether the additional allowance requested herein is necessary to achieve just and adequate compensation for the claimant.

In the motion papers submitted herein, claimant has attested to and established to the satisfaction of the Court that the terms of the retainer agreement between claimant and his counsel provided for attorney fees of 33 1/3 % of the amount recovered over the initial offer, including interest. The Court does not have to accept the terms of the fee arrangement between claimant and counsel, but instead may make an award that is reasonable under all the prevailing circumstances. In this regard, claimant has the burden of establishing the reasonableness of the requested fee. When considering the reasonableness of attorney fees, a Court may consider such factors as the time spent, the difficulties of the issues presented, the nature of the services rendered, the customary fee, the amount involved, and the results obtained (Matter of Potts, 213 App Div 59, affd 241 NY 593).

The terms of the retainer agreement between claimant and his counsel in this claim are similar to terms frequently utilized in appropriation claims. The fact that the amount of payment to claimant's counsel would be determined not only by the amount awarded by the Court, but also would be based upon the amount of interest added to the award is permissible and is in accordance with the weight of authority (see, Gold-Mark 35 Assoc. v State of New York, Ct Cl, January 29, 1996 [Claim No. 78376, Motion No. M-52741], Benza, J.).

As set forth above, although the Court made an award which exceeded defendant's initial offer by approximately 97%, the award of $18,700.00 was much more in line with defendant's initial offer of $9,500.00, than it was with claimant's trial proof of $50,000.00. The primary difference in the respective appraisals and in the trial proof pertained to the issue of consequential damages. A considerable portion of the trial was spent on this issue, with particular regard to claimant's position that he lost the use of approximately six parking spaces from the appropriation. Claimant's appraiser determined damages of $36,100.00 directly attributable to his determination that claimant lost these parking spaces. In contrast, defendant's appraiser did not find any such damages. In its Decision, the Court agreed with defendant and did not find that claimant lost the effective use of any parking spaces, and therefore the Court did not award any such consequential damages. Under these circumstances, the Court does not believe that an award of additional allowances in the amount sought by claimant would be a proper exercise of its discretion. Furthermore, it would be disproportionate to the amount actually awarded in the appropriation claim.

The Court does believe, however, that an additional award is merited, although not to the extent requested by claimant, in order to achieve just and adequate compensation.

Accordingly, this motion is granted to the extent that claimant is awarded $2,500.00 for attorney fees, $2,000.00 for appraisal fees, and $635.05 for actual disbursements. The Court finds that this additional award of $5,135.05 is reasonable under the circumstances of this claim.
It is therefore

ORDERED, that Motion No. M-61718 is hereby GRANTED to the extent provided for herein, and claimant is awarded the total sum of $5,135.05 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.

December 11, 2000
Syracuse, New York

Judge of the Court of Claims