On March 14, 2001, the following papers, numbered 1 to 3, were read on motion by
claimant for an additional allowance pursuant to EDPL §701:
Notice of Motion, Affidavits,
Affirmation and Exhibits Annexed 1
Affirmation in Opposition 2
Reply Affirmation 3
Claimant seeks an additional allowance for actual and necessary costs,
disbursements and expenses pursuant to EDPL§ 701.
Following trial, a memorandum decision, filed December 29, 2000 awarded
claimant $94,800.00 with statutory interest thereon from the vesting date of
September 18, 1995 to the date of decision and thereafter to date of entry of
judgment for the permanent appropriation and $18.00 per month for the temporary
easement from the date of vesting of September 18, 1995 until easement is/was
At the time of the taking, the State offered $50,500.00 as payment for the
taking. Claimant accepted the State's initial offer as an advance payment only
and sought counsel and commenced this action. In addition to hiring counsel,
claimant retained an appraiser who appraised the total damages and an
An award of an additional allowance is in order where the award is
substantially in excess of the condemnor's initial offer (Matter of New York
City Transit Authority, [Superior Reed & Rattan Furniture Co., Inc.] 160
AD2d 705) and when deemed necessary by the Court to achieve just and adequate
compensation. The additional allowance is not mandatory and the determinations
are left to the Court's discretion.
In determining whether the difference is substantial, the Court must look to
the percentage difference, as well as the dollar amount. The award for
permanent taking was about 88.5% of and $44,696.00 more than the State's initial
The Court believes that the award herein is substantially more than the
initial offer. Based upon the foregoing, it is determined that the differences
herein satisfy the first test and are substantial within the meaning of the
statute (Matter of Malin v State of New York, 183 AD2d 899).
To obtain a fair and just valuation of its property, claimant hired an
appraiser who was paid $6,000.00 for the report and $5,600.00 for her court
appearances and trial preparation. Therefore, the total paid to the appraiser
was $11,600.00. In addition, claimant hired an engineer. The total fee paid to
the engineer was $5,295.00. Further, claimant's attorney incurred
disbursements totaling $779.00.
Claimant also retained counsel on a contingency fee basis that set legal fees
as one-third of the difference between the total recovery and advance payment.
Claimant will receive statutory interest from the date of the taking to the date
of payment at a rate of 9% on the difference between the award and the advance
payment. In light of a vesting date of September 18, 1995, counsel contemplates
that payment is likely to be in June 2001, therefore, counsel relies on an
interest rate of 51.75%. Calculating the interest from the date of vesting
(September 18, 1995) to June 2001, counsel anticipates that the total award
would be $67,826.18, and that his fee would be $22,608.00. Counsel fees
together with expert fees and disbursements will total $40,282.00.
In defendant's affirmation in opposition to this motion, defendant argues that
the calculations of the claimant do not substantiate the award they are seeking.
Defendant agrees that the difference between the advance payment and the Court
award is $44,696.00. Assuming a June 2001 payment date, defendant calculated
interest to be $19,108.00. When adding the interest to the $44,696.00 defendant
arrives at a total award of $63,804.00. Using a rate of 42.75% defendant
calculates the award for attorney fees to be $21,268.00.
In view of the vesting date and proposed date of payment, the Court finds the
interest should be calculated at a rate of 51.75%.
In view of the fact payment has not been made to this date, the Court cannot
calculate the total amount that claimant will receive. Without knowing that
amount, we cannot calculate the fee counsel will earn. The parties agree
payment is likely in June 2001. Using an interest rate of 51.75%, the Court
estimates statutory interest from the date of vesting (September 18, 1995) on
the principal difference of $44,696.00 to be $23,130.00(R) . When this is added
to the principal amount due claimant of $44,696.00 it is anticipated that the
total payment will be $67,826.00. According to claimant's fee arrangement with
counsel, counsel's fee would be $22,608.00. Therefore, the additional award to
claimant for counsel, expert fees and disbursements would be $40,282.00.
The contingency fee arrangement based upon the final amount awarded, including
interest, is appropriate as a matter of law (Matter of Hoffman v Town of
Malta, 189 AD2d 968; Sea Isle Foods, Inc. v State of New York, 40
Misc 2d 872) . Counsel will earn a fee on all funds received by claimant,
whether those funds are procured by using legal skill or because of the passage
of time. The retainer agreement is reasonable and the counsel fees, even with
the interest and temporary easement, are a legitimate expense that claimant has
incurred in obtaining just and adequate compensation.
Defendant further argues in its opposing affirmation that no appraisal fee
should be made by the Court in its discretion in this case because of the
diminished credibility of the appraisal citing page 6 of the decision, which
stated claimant's appraisal contained numerous errors. Likewise defendant
argues that the engineering fee should be rejected, citing the decision at pages
4 and 5, where the Court found drawings were replete with errors. Claimant's
reply affirmation states that although the Trial Court found claimant's expert
proof to be somewhat faulty and rejected parts of it, the Court did accept other
parts and relied upon a good portion of such proof in reaching both before and
after values of the subject. Claimant further argues the appraiser and engineer
provided valuable testimony which assisted the Court in making its award.
With regard to the fees paid to the appraiser, the Court has no doubt that it
was necessary for claimant to obtain an appraisal and for the appraiser to be
present to testify. While the Court did find the appraisal to contain numerous
errors, the Court nonetheless finds the expenses to be reasonable and necessary.
The Court finds the charge by the appraiser of $11,600.00 for preparation of the
appraisal, trial preparation and testimony to be reasonable and necessary. In
regard to the engineer's fee, the Court did find some drawings to contain errors
and found no probative value for these two exhibits, nonetheless, the Court
finds the hiring of an engineer and his fee of $5,295.00 to be reasonable and
Based upon the foregoing, the Court finds that the reasonable and necessary
expenses that claimant has incurred or will incur will be $40,282.00. Without
the additional allowance, the net proceeds of the award, plus interest would be
substantially less of what was found to be just or adequate compensation. An
award without these expenses would be grossly inadequate. Claimant is awarded
an additional allowance for the necessary costs and expenses as set forth
Accordingly, the motion is granted. The Clerk shall enter an additional
judgment in favor of claimant in the amount of $40,282.00.