New York State Court of Claims

New York State Court of Claims

RBROWN v. THE STATE OF NEW YORK, #2001-001-017, Claim No. 88093, Motion No. M-63028


Synopsis


The Court grants claimant's motion to the extent the application seeks an additional allowance for his attorney's and engineer's fees; and denies so much of claimant's motion as requests an additional allowance for his appraiser's fee.

Case Information

UID:
2001-001-017
Claimant(s):
ROBERT BROWN
Claimant short name:
RBROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
88093
Motion number(s):
M-63028
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Murphy, Lynch & Gionis, P.C.By: Paul L. Damato, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Rose F. Lowe, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 27, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion for an additional allowance pursuant to EDPL 701: Notice of Motion, dated January 22 and filed January 24, 2001; Affirmation in Support of Paul L. Damato, Esq., dated January 22 and filed January 24, 2001, with annexed Exhibits A-E; Affirmation in Opposition of Rose F. Lowe, Esq., AAG, dated February 6 and filed February 13, 2001; Reply Affirmation of Paul L. Damato Esq., dated February 13 and filed February 14, 2001; the claim, dated October 5 and filed October 7, 1993; and Brown v State of New York, Ct Cl, unreported decision filed Dec. 28, 2000, Silverman, J., Claim No. 88093.

Pursuant to the Eminent Domain Procedure Law and Highway Law § 30, defendant State of New York ("defendant" or "the State") took a temporary easement affecting a portion of claimant Robert Brown ("claimant")'s real property located in the Town of Oyster Bay, Nassau County. The date of vesting was stipulated as October 16, 1992 and claimant acknowledges that the temporary easement was extinguished 44 months afterwards (Brown v State of New York,

Ct Cl, unreported decision filed Dec. 28, 2000, Silverman, J., Claim No. 88093; Affirmation in Support of Paul L. Damato, Esq., dated January 22 and filed January 24, 2001, with annexed Exhibits A-E ["Damato Aff."], ¶ 4; Exh. B). Pursuant to EDPL 304, the State made an initial offer and advance payment of $37,050 (Damato Aff., ¶ 4). By decision filed on December 28, 2000, the Hon. Leonard Silverman (subsequently retired) awarded claimant damages for the temporary easement amounting to $1,100 per month,[1] as well as $70,750 for the cost to cure a drainage problem caused by the temporary easement (Brown v State of New York, supra).

Claimant now seeks an additional allowance pursuant to EDPL 701 for his attorney's, appraiser's and engineer's fees (Notice of Motion, dated January 22 and filed January 24, 2001; Damato Aff., ¶ 6; Exh. C [Affidavit of Robert Brown, sworn to January 18, 2001 ("Brown Aff.")]). The State opposes the application, arguing that the Court may not properly award fees for expert reports struck because of discovery violations and not relied upon by the awarding court (Affirmation in Opposition of Rose F. Lowe, Esq., AAG, dated February 6 and filed February 13, 2001 ["Lowe Aff."], ¶¶ 4-6). Additionally, defendant avers that it would be "unconscionable that any payment be made by [sic] claimant's attorney based on a failed theory of compensation" (Lowe Aff., ¶ 7).

EDPL 701 provides a mechanism whereby a claimant/condemnee may apply for costs associated with the prosecution of an appropriation action including reasonable attorney, appraiser and engineer fees when "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" (EDPL 701). The phrase "substantially in excess of the amount of the condemnor's proof" refers to the condemnor's initial offer, not what is presented at trial (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; see also, General Crushed Stone Co. v State of New York, 93 NY2d 23, 27 [noting that allowances under EDPL 701 provide a means of mitigating costs "wrought by the condemnor's low, original offer"]). Before a court entertaining an application may award such a discretionary award, however, it must be shown (1) that the award is "substantially" more than what was initially offered by the condemnor; and (2) that the expenses were incurred "to achieve just and adequate compensation" (EDPL 701; see, Matter of Village of Johnson City, ___ AD2d ___, 715 NYS2d 775). Here, the State concedes that the award was "substantially more than the initial offer" (Lowe Aff., ¶ 3), leaving as the sole inquiry whether the expenses sought by claimant were incurred to achieve just and adequate compensation.

Claimant's application for attorney's fees is based on a standard one-third contingency fee retainer agreement whereby claimant agreed to pay counsel one-third of all proceeds exceeding the initial advance payment (i.e., $119,150.00 [total award] - $37,050.00 [advance payment] = $82,100 [amount by which award exceeds advance payment]) (Brown Aff., ¶ 6; Damato Aff., ¶ 6). Applying this percentage to this amount, claimant's attorney calculates that he is entitled to $27,363.93 ($82,100 x 0.333)[2] (Damato Aff., ¶ 6). Applying the same reasoning to calculate his share of the interest on the amount by which the award exceeds the advance payment, he arrives at $20,317 ($60,959.00 [interest attributable to amount by which award exceeds advance payment] x 0.333 = $20,317.00)[3] (Damato Aff., ¶ 6). Claimant requests the sum of $27,363.00 + $20,317.00 (but see, n 2, n 3, supra).

"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" (Ventre v State of New York, Ct Cl, unreported decision filed Dec. 21, 2000, Midey, J., Claim No. 88013, Motion No. M-61718; see, Matter of Hoffman v Town of Malta, 189 AD2d 968; Norboro Realty v State of New York, Ct Cl, unreported decision filed Oct. 5, 2000, O' Rourke, J., Claim No. 96631, Motion No. M-61971). Here, the Court finds the fee charged by claimant's attorney for prosecuting this action (and consequently obtaining for claimant an amount well over three times the amount originally offered by defendant) both reasonable and incurred "to achieve just and adequate compensation" (EDPL 701). Accordingly, the Court awards an additional allowance for attorney's fees to equal one-third of the amount ($82,100) by which the award exceeds the advance payment and, additionally, one-third of the interest on this amount set forth in the judgment.

Claimant also requests an allowance of $850 to recoup his engineer's fee (Damato Aff.,

¶ 6; Affidavit of Joseph E. Diogaurdi [Exh. E]). The engineer estimated $70,750 as the cost to cure, and this figure was incorporated into defendant's appraisal and subsequently stipulated to by the parties. Ultimately, Judge Silverman awarded this amount, which he determined reflected an accurate cost for remedying the drainage problem (see, Brown v State of New York, supra, at slip opn p 4). The Court therefore finds the engineer's fee was necessary for claimant to receive adequate compensation and grants claimant's request for the $850 fee.

Claimant's request for $8000 to cover the cost of his appraiser is more problematic (Damato Aff., ¶ 6; Exh. D [Affidavit of Sandford Brunswick]). Applications under EDPL 701 for reimbursement for costs related to unsuccessful or rejected arguments have generally met with little success (see, e.g., Matter of Village of Johnson City, 715 NYS2d 775, 777, supra [where court rejected theory of claimant's expert, expenses related to such were not necessarily incurred to achieve just and adequate compensation]; First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, supra [same]). "The rationale seems to be that where proof has no effect on the main, property value award, it is not necessary for just compensation" (Meyers v State of New York, 166 Misc 2d 586, 589). In other words, in making a determination of whether an expense is incurred by a condemnee "to achieve just and adequate compensation" for purposes of EDPL 701, a court should review "the bases for said award . . . and disregard those expenses and services not contributing thereto" (id., at 590).

Judge Silverman struck claimant's appraisal for "claimant's failure to disclose [the] existence of a sub-lease agreement in violation of [the] Court's discovery orders" and claimant thereafter "adopted the defendant's appraisal as proof of value and of damages" (Brown v State of New York, supra, at slip opn p 2). Claimant's appraisal, consequently, was not used by the Judge Silverman in arriving at the award for the temporary easement or the award for the cost to cure. Accordingly, the Court finds that the appraisal costs incurred by claimant were not "necessary for just and adequate compensation" (Meyers v State of New York, supra, at 590) within the meaning of EDPL 701 and, therefore, denies this part of his application (see, Town of Esopus v Gordan, 143 Misc 2d 193, affd 162 AD2d 829, lv denied 77 NY2d 801 [holding that condemnee was not entitled to reimbursement under EDPL 701 for payments to real estate appraiser whose appraisal was not admissible]).

Based on the foregoing, the Court grants claimant's motion to the extent the application seeks an additional allowance for his attorney's and engineer's fees; and denies so much of claimant's motion as requests an additional allowance of $8000 for his appraiser's fee.

Let judgment be entered accordingly.


March 27, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1] The total damages for the temporary easement running for 44 months (44 x $1100) equaled $48,400 (Damato Aff., ¶ 4).
[2]Claimant calculates $82,100 x 0.333 as $27,363.93; the Court calculates $82,100 x 0.333 as $27,339 (rounded).
[3] Again, the Court calculates a slightly different amount; i.e., $60,959.00 x .333 = $20,299 (rounded); however, this is academic since the application papers incorrectly claim interest from the date of vesting (i.e., when the appropriation map was filed on October 16, 1992 [the claim, dated October 5 and filed October 7, 1993, ¶ 4]). Because claimant did not file the claim until October 7, 1993, almost 12 months later, he is not entitled to interest from the sixth month following the accrual of the claim until the date the claim was filed (roughly six months) (Court of Claims Act § 19 [1]). Once the award of attorney's fees is based on the interest amount as calculated by the judgment unit (pending) rather than the figures in claimant's motion papers, this discrepancy will be remedied.