New York State Court of Claims

New York State Court of Claims

EFCO-FA v. THE STATE OF NEW YORK, #2002-028-051, Claim No. 93054, Motion No. M-65236


Synopsis


The Court granted Claimant's EDPL 701 application and awarded an additional allowance

Case Information

UID:
2002-028-051
Claimant(s):
EFCO-FA DEVELOPMENT CORP.
Claimant short name:
EFCO-FA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93054
Motion number(s):
M-65236
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
FLOWER, MEDALIE & MARKOWITZ, ESQS.BY: Edward Flower, Esq. and Donald Markowitz, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Rose Farrell Lowe, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 29, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion for an additional allowance pursuant to EDPL §701:

1) Notice of Motion filed May 21, 2002 with Supporting Affidavit of Fred Efraim (Efraim Affidavit) sworn to May 13, 2002; Affidavit of Sanford Brunswick (Brunswick Affidavit) sworn to May 10, 2002; and Supporting Affirmation of Edward Flower (Flower Affirmation) and annexed Exhibits A-H.

2) Affirmation in Opposition of Assistant Attorney General Rose Farrell Lowe, (Lowe Affirmation), filed June 7, 2002.

3) Reply Affirmation of Donald Markowitz (Markowitz Affirmation) and annexed Exhibits A-B.



Filed Papers: Decision of Sise, J., filed April 11, 2002; Amended Decision of Sise, J., filed May 7, 2002; Judgment, entered June 4, 2002.


Claimant seeks an additional allowance for actual and necessary costs, disbursements and expenses pursuant to EDPL § 701. The Defendant has opposed the application, taking issue with the appraiser's fee, law firm expenses (Lowe Affirmation, ¶ 4), and the inclusion of interest in calculating the attorneys fee (Id., ¶ 8) arguing that the additional allowance should be only $78,945.90 (Id.). As there is no automatic right to recover the additional costs in defending the value of a landowner's property, the Court reviews the application (General Crushed Stone Co. v State of New York, 93 NY2d 23, 28).

Following trial, decision, filed April 11, 2002 awarded claimant $270,000.00 with statutory interest thereon from the vesting date of August 17, 1995[1], to the date of decision herein and thereafter to the date of entry of judgment[2] for the permanent appropriation; and $2,629.90 for the temporary easement.

At the time of the taking, the State offered $33,400.00 as payment for the taking (Efraim Affidavit, ¶ 5; Lowe Affirmation, ¶ 3). Claimant accepted the State's initial offer as an advance payment only and sought counsel and commenced this action (Efraim Affidavit, ¶ 5). To obtain a fair and just valuation of its property, claimant hired an appraiser whose fees were $6,000.00 for the report, $5,250.00 for court appearances and $1,750.00 for trial preparation. The total due the appraiser was $13,000.00. Claimant's attorneys seek $131,177.73 in attorneys' fees, and disbursements totaling $490.44. Claimant thus seeks an additional allowance of $144,668.17.

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 (Hakes v State of New York, 81 NY2d 392, 397). 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 just the permanent taking was slightly more than eight times or 800% of the State's initial offer. As such, 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).

ATTORNEY FEES

Claimant retained its counsel on a contingent fee basis (Efraim Affidavit, ¶ 7; Flower Affirmation, ¶ 7; Exhibit C). The Court rejects Defendant's argument that interest should be excluded from the calculation based upon the mere passage of time occasioned by the duration of the litigation. "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). Claimant has calculated the interest, at the maximum legal rate of 9%, from the date of vesting (August 17, 1995) to an anticipated payment date in October 2002 ( Flower Affirmation, ¶ 4). Thus, counsel anticipates that the total award would be $393, 533.19, and that his fee, consistent with the retainer agreement, would be $131,177.73. The Court finds the fee charged by claimant's attorneys for prosecuting this action (and consequently obtaining for claimant an amount over eight times the amount originally offered by defendant, before interest) both reasonable and incurred "to achieve just and adequate compensation" (EDPL 701). The Court finds the interest should be calculated at a rate of 9% per annum for that period (see, Guido v State of New York, 288 AD2d 345; Auer v State of New York, 283 AD2d 122; Gladstone v State of New York, Claim No. 92827, Motion No. M-61967, UID #2000-017-612, Ct Cl, O'Rourke, J.[December 22, 2000], [defendant's failure to seek different interest rate constituted waiver]). Accordingly, the Court awards an additional allowance for attorneys' fees to equal one-third of the sum of the amount by which the award exceeds the advance payment ($239,229.00) and the estimated interest ($154,303.29), which the Court finds to be $131,177.73. The Court also awards Claimant $490.44 in disbursements and expenses (Efraim Affidavit, ¶¶ 16 and 18, Exhibit C)[3] (see, Fodera v State of New York, Ct Cl, Read, P.J., March 26, 2002, Claim No. 88245, UID #2001-001-087).

APPRAISAL FEES

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 and assist at the trial of the Claim. Defendant's argument that the appraiser has done similar work and there was nothing unique about the appraisal (Lowe Affirmation ¶ 4) rendering the current fee excessive lacks merit. However, the Court cannot approve the flat fee charge of $1,750.00 for "Review of State's Appraisal and Conference for Trial Preparation" (see, Exhibit F, Brunswick Invoice). Claimant's appraiser stated in support of the instant application that such work would be "billed on a time basis" (Brunswick Affidavit, ¶ 5). The Court is without knowledge of either Brunswick's hourly rate or the actual time expended for such work. While the record before the Court does establish that Brunswick did review the State's appraisals and prepare for trial (Brunswick Affidavit, ¶¶ 8 and 9) the Court cannot evaluate the reasonableness of the charges and as such makes no award for those services. Accordingly, the Court finds the expenses, except as noted, to be reasonable and necessary. The Court finds the charge by the appraiser of $11,250.00 for preparation of the appraisal, trial preparation and testimony to be reasonable and necessary.

AWARD

Based upon the foregoing, the Court finds that the reasonable and necessary expenses that claimant has incurred or will incur will be $142,918.17. Without the additional allowance, the net proceeds of the award, plus interest would be substantially less than 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 $142,918.17.


August 29, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The amended decision inserted the correct date of vesting - August 17, 1995.
[2] The Clerk calculated judgment interest in the amount of $169,418.99 through June 4, 2002.
[3] Claimant properly excluded expenses associated with an unsuccessful appeal (see, e.g., Matter of Village of Johnson City, 277 AD2d 773,775).