New York State Court of Claims

New York State Court of Claims

MILLER PLACE v. THE STATE OF NEW YORK , #2001-028-801, Claim No. 92748, Motion No. M-63091


Claimant moves pursuant to EDPL 701

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):

Claimant's attorney:
Flower, Medalie & Markowitz, Esqs.By: Edward Flower, Esq.
Defendant's attorney:
Attorney General of the State of New YorkBy: Rose Farrell Lowe, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


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:

Papers Numbered

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 extinguished.

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 engineering witness.

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 offer.

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 necessary.

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 previously.

Accordingly, the motion is granted. The Clerk shall enter an additional judgment in favor of claimant in the amount of $40,282.00.

April 5, 2001
Hauppauge , New York

Judge of the Court of Claims