New York State Court of Claims

New York State Court of Claims

NORBORO REALTY v. THE STATE OF NEW YORK, #2000-017-035, Claim No. 96631, Motion No. M-61971


Synopsis


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

Case Information

UID:
2000-017-035
Claimant(s):
NORBORO REALTY CO., INC.
Claimant short name:
NORBORO REALTY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96631
Motion number(s):
M-61971
Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Kent L. Mardon, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: J. Gardner Ryan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 27, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers, numbered one through eight, were read and considered by the Court on claimant's motion for an additional allowance pursuant to the Eminent Domain Procedure Law (EDPL) §701:

1-5. Notice of Motion, Affidavit of Thomas T. Sanford, Affidavit of Harold R.

Fountain, Affirmation of Kent L. Mardon and Exhibits


6. Affirmation in Opposition


7. Reply Affirmation


8. Decision in Norboro Realty Co., Inc. v State of New York, Claim No.

96631 [filed 2-3-2000]

This motion arises from the appropriation by defendant of a portion of claimant's improved property that is situated on the south side of Route 55 between Overlook and Noxon Roads in the Town of LaGrange in Dutchess County, New York. By Decision filed on February 3, 2000, this Court awarded claimant $46,976.00 plus interest for the appropriation and judgment was entered thereon for $61,626.29, including interest. Claimant now seeks an additional allowance for attorney's fees, appraiser's fees and disbursements for a surveyor and photographs in the amount of $22,997.50 pursuant to EDPL §701.

EDPL §701 ensures that condemnees receive a fair recovery by providing them an opportunity to recover the costs of litigation incurred through prosecution of their condemnation claims where the taking was substantially undervalued in the State's initial offering (see, Matter of New York City Transit Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705). The statute 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 a 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 applications 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.


(EDPL §701). It is well established that the term "condemnor's proof" as used in this statute refers to the condemnor's initial offer rather than to its trial proof (see, First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, affd sub nom Hakes v State of New York, 81 NY2d 392; Matter of New York City Transit Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705, supra).

The discretionary allowance provided by EDPL §701 may be awarded where two conditions are met: (1) the award must be "substantially in excess of the amount of the condemnor's proof," and (2) the expenses sought to be recovered must have been reasonable and necessarily incurred to achieve just and adequate compensation (First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, supra).

To determine whether an award is substantially in excess of the amount of the condemnor's proof, the appropriate measure is the difference between the State's initial offer and the amount awarded, and not the value of the parcel as a whole (see, Scuderi v State of New York, 184 AD2d 1073). The Court finds in the present claim that the award is "substantially in excess" of the State's initial offer and thus that the first prong of the aforementioned test has been satisfied. Defendant's initial offer of advance payment was $3,700 (see, Notice of Motion, Affirmation of Kent L. Mardon), and the Court awarded claimant the sum of $46,976. The Court's award, which was $43,276.00 or 1200% greater than the advance payment, is substantially in excess of the condemnor's proof (see, e.g., County of Oswego v Maroney, 186 AD2d 1031 [award that was 200% in excess of condemnor's initial offer was substantially in excess within the meaning of the statute]; Scuderi v State of New York, supra [award that was 41.4% in excess of State's original offer was substantially in excess]). Thus, the remaining inquiry for the Court is whether the additional allowance sought is necessary for claimant to receive just and adequate compensation (see, EDPL §701; Hakes v State of New York, 81 NY2d 392, supra).

Claimant is seeking an additional allowance for attorney's fees. Claimant entered into a contingency fee agreement which provided that the attorney would receive "one-third of the difference between any Judgment or settlement and the $3,700 previously offered by the State" (Notice of Motion, Exh. B). Applying this formula, Mr. Mardon's attorney's fees would amount to $18,310.00 (see, Notice of Motion, Sanford Affidavit). While the Court is not bound by a contingency fee agreement (see, Cassel v State of New York, Claim No. 78296, Silverman J. [filed 6-4-91]), contingency fee arrangements based on the final award plus interest are commonly used, and there is ample authority for accepting them as a basis for determining attorney fees on EDPL §701 applications (see, Matter of Hoffman v Town of Malta, 189 AD2d 968; Zappavigna v State of New York, 186 AD2d 557). The Court finds that the attorney's fees sought in this instance by this experienced attorney are reasonable. Additionally, because the Court has found that the judgment was substantially in excess of the condemnor's proof, the Court also finds that the attorney's fees were necessarily incurred by claimant in its quest to achieve just and adequate compensation and thus that claimant is entitled to an additional allowance in this regard.

Claimant also seeks an additional allowance in the amount of $4,187.50 for appraiser's fees. In support of this motion, an affidavit of Harold R. Fountain, claimant's appraiser, was submitted, wherein he valued his services at $3,200 for the appraisal and $987.50 for his trial testimony (see, Notice of Motion, Fountain Affidavit). The Court notes that in determining the after-value of the subject property, defendant's appraiser utilized the same comparable sales as in the before situation, but claimant's appraiser relied on different sales that were completely disregarded by this Court because they led to what the Court found was an "inflated valuation of the damages caused by the parking reduction" (Norboro Realty Co. Inc. v State of New York, Claim No. 96631, Unreported Decision of O'Rourke, J., at 9 [filed 2-3-00]). Claimant's appraiser undoubtedly expended needless time and effort in researching, analyzing and providing related testimony about these sales. Thus, the Court finds that a portion of the fee sought to compensate claimant for appraiser's fees was unnecessarily expended. Accordingly, the Court has reduced the additional allowance sought for appraiser's fees by 1/3, leading to an award of $2,791.67 rather than $4,187.50 (see, Hakes v State of New York, 81 NY2d 392, supra; First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, supra). In fashioning this award, the Court is mindful that the efforts of claimant's appraiser did assist the Court in finding that consequential damages for loss of parking were warranted, although not to the extent determined by claimant's appraiser (see, Scuderi v State of New York, 184 AD2d 1073, 1074, supra). The Court also finds that the surveyor and photography fees, valued at $500.00, were reasonable and an allowance in that regard is necessary for claimant to achieve just and adequate compensation.

Accordingly, claimant's motion is granted in part, and the Clerk of the Court is directed to enter judgment in favor of claimant in the amount of $21,601.67, without interest, which includes $18,310.00 in attorney's fees, $2,791.67 for appraiser's fees and $500.00 for surveyor and photography fees.

LET JUDGMENT BE ENTERED ACCORDINGLY.


August 27, 2000
White Plains, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims