New York State Court of Claims

New York State Court of Claims

EXECUTIVE ASSOCIATES v. THE STATE OF NEW YORK, #2002-015-230, Claim No. 097168, Motion No. M-64428


Synopsis


Where Court's award after trial in appropriation case substantially exceeded State's original offer claimant was entitled to recover reasonable and necessary expenses of trial pursuant to Eminent Domain Procedure Law § 701.

Case Information

UID:
2002-015-230
Claimant(s):
EXECUTIVE ASSOCIATES, III, LLC
Claimant short name:
EXECUTIVE ASSOCIATES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
097168
Motion number(s):
M-64428
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Joshua J. Effron, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Martin Rowley, Esquire
Third-party defendant's attorney:

Signature date:
March 6, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion for an additional allowance pursuant to Eminent Domain Procedure Law (EDPL) § 701 to obtain just and adequate compensation for the State's appropriation of claimant's real property is granted. Following a trial the Court issued a decision filed July 8, 2000 which awarded claimant $135,300 in total damages along with statutory interest from July 3, 1997 (date of the taking) to the date of decision[1] plus additional interest to the date of entry of the judgment pursuant to CPLR § 5001 and § 5002. Subsequent to the decision a judgment was entered by the Clerk of the Court in the amount of $174,142.01.

There is no dispute that at the time of the taking the State offered $36,500.00 for the property which consisted of 2.06 +/- acres on Crescent Road in the Town of Clifton Park, Saratoga County. The State's acquisition of the subject property was necessary to provide public access through the rear portion of the property to a Capital District Transportation Authority (CDTA) park and ride lot. The State's first filed appraisal provided just compensation of $30,000.00 but after the exchange of appraisals the State filed a supplemental appraisal which reduced its just compensation figure to $20,000.00.

Claimant in addition to hiring an attorney (Joshua J. Effron, Esquire) to prosecute the claim also retained the services of an appraiser (Kenneth V. Gardner II) and a licensed landscape architect (Gordon P. Nicholson, a principal in Environmental Design Partnership). On its motion claimant seeks to recover the following amounts alleged to be the actual and necessary costs, disbursements and expenses of these individuals:
Attorneys fees and expenses in the amount of $44,354.79

Appraiser's fees and expenses:
- cost of appraisal $ 2,700.00
- trial preparation and testimony $ 3,828.00
Architect's fees and expenses $ 5,827.13

____________
TOTAL $56,709.92[2]


On the motion defense counsel concedes that the Court's award was substantially in excess of the State's original offer[3] within the meaning of EDPL § 701 and further concedes that the services rendered by claimant's attorney were professional and competent and produced a favorable result for the claimant. The defendant, however, asks that the Court award less than the amount requested by claimant. Defense counsel argues that claimant could have reduced or eliminated the travel expenses of its appraiser based in Ithaca, New York by hiring a local appraiser. Defense counsel further argues that the interest awarded by the Court exceeds that which is constitutionally required for an appropriation of real property and that such excess interest paid should be viewed as a windfall and applied to offset claimant's recovery of an additional allowance on this motion.

Pursuant to EDPL § 701 an additional allowance may be awarded in the Court's discretion to a condemnee to achieve just and adequate compensation where the following two conditions are met: (1) the Court's award must have been "substantially in excess of the amount of the condemnor's [sic] proof," and (2) the expenses sought must have been reasonable and necessary (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).

The defendant conceded that the facts herein satisfy the first condition. The Court finds that the arguments presented in support of the State's request to award a reduced additional allowance lack merit. A condemnee may freely choose its experts but in doing so assumes the costs associated with their work, including travel expenses and other costs, which claimant may or may not be able to recover in a motion pursuant to EDPL § 701. Absent a showing by the State that the costs and expenses sought were not "actually incurred" they are recoverable; since no such showing was made here they are awarded.

Additionally, the percentage of interest to be awarded by a Court in a judgment is legislatively established and is not subject to adjustment by the Court. The 9% interest awarded in this matter was authorized by State Finance Law § 16 and such award may not be deemed a windfall recovery by the condemnee. The defendant's plea to offset the additional allowance request made on this motion by the alleged amount of an alleged excess interest award is denied.

The motion is in all respects granted and the Clerk is directed to enter an additional judgment in favor of the claimant in the amount of $56,709.42.
LET JUDGMENT BE ENTERED ACCORDINGLY.


March 6, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 10, 2001;
  2. Affidavit of Richard Sleasman sworn to October 17, 2001 with exhibits;
  3. Affidavit of Kenneth V. Gardner, II, sworn to November 7, 2001 with exhibits;
  4. Affidavit of Gordon P. Nicholson sworn to December 4, 2001 with exhibits;
  5. Affirmation of Joshua J. Effron dated December 10, 2001 with exhibits;
  6. Affirmation of Martin Rowley dated December 27, 2001 with exhibits;
  7. Reply affirmation of Joshua J. Effron dated December 31, 2001.


[1]See, Court of Claims Act § 19 [1].
[2]Claimant's attorney miscalculated attorney's fees and disbursements listed in paragraphs 24-26 of his affirmation in support of motion. Those figures total $44,354.29 and total sought on the motion is corrected as $56,709.42.
[3]The amount awarded by the Court was 370% higher than the State's original offer; 450% higher than the State's first appraisal figure which was used at trial and 677% higher than the State's supplemental appraisal filed in this case.