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,
, to the date of decision herein and
thereafter to the date of entry of judgment
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
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
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).
Claimant retained its counsel on a contingent fee basis (Efraim
, ¶ 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
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 (
, ¶ 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
, 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
, ¶¶ 16 and 18, Exhibit
, Fodera v State of New
, Ct Cl, Read, P.J., March 26, 2002, Claim No. 88245, UID
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.
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
Accordingly, the motion is granted. The Clerk shall enter an additional
judgment in favor of Claimant in the amount of $142,918.17.