New York State Court of Claims

New York State Court of Claims

RAPP v. THE STATE OF NEW YORK, #2003-016-095, Claim No. 100111, Motion No. M-67209


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):

Alan C. Marin
Claimant's attorney:
Siegel, Fenchel & Peddy, P.C.By: Saul R. Fenchel, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: J. Gardner Ryan, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 4, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants' motion for an award of expert fees, disbursements and attorneys' fees pursuant to §701 of the Eminent Domain Procedure Law ("EDPL"). In a Decision filed May 21, 2003, claimants were awarded the total sum of $89,800 (exclusive of interest) for a partial appropriation of property and a temporary easement at a gas station owned by them in Islip, Suffolk County. Judgment in the total amount of $124,105.28 was entered on July 8, 2003, which included interest of $34,305.28 at the statutory rate of 9%. Claimant now seeks to recover the following: Appraiser's fee $7,606.25
Engineer's fee $10,677.38
Transcript costs $2,398.75
Attorney's fees $23,750.00 plus interest from the date of vesting

EDPL §701 provides that such costs may be awarded where: (1) the underlying "award is substantially in excess of the amount of the condemnor's proof"; and (2) "deemed necessary by the court for the condemnee to achieve just and adequate compensation."

It is well settled that the phrase "substantially in excess of the amount of the condemnor's proof" refers to the initial offer. See, e.g., First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, 585 NYS2d 261 (4th Dept 1992), affd sub nom. Hakes v State of New York, 81 NY2d 392, 599 NYS2d 498 (1993). In this case, the initial offer made to claimants was $18,550.00. See exhibit A to claimants' moving papers. The Court's award of $89,800.00 was $71,250.00 more than the initial offer, or more than 384% higher. Defendant does not dispute that this discrepancy is "substantial" within the meaning of §701, and I find that claimants satisfy the first requirement of such section. See, e.g., Fodera v State of New York, Ct Cl dated March 26, 2002 (unreported, claim no. 88245, motion no. M-63947, Read, J., UID # 2001-001-087[1]).

The Court must next determine whether the costs at issue were necessary "to achieve just and adequate compensation." First, claimants seek $7,606.25 for their appraiser Ronald Haberman of Michael Haberman Associates, Inc. Such consists of $5,700.00 for Mr. Haberman's expert report and $1,906.25 for his testimony and preparation time. See exhibit D to claimants' moving papers. In determining whether claimants are entitled to such expense pursuant to §701, the Court must "[disregard] those expenses and services not contributing thereto." Meyers v State of New York, 166 Misc 2d 586, 590, 634 NYS2d 642, 645 (Ct Cl 1995). In this case, the Court relied significantly on Mr. Haberman's appraisal in rendering its decision and I thus find that it was necessary to achieve just and adequate compensation.

Next, claimants seek $10,677.38 for their engineer, Steven Schneider of Schneider Engineering. Such consists of $4,700.00 for an expert report, $5,920.00 for testimony and preparation time and $57.38 of out-of-pocket expenses. While I was not convinced of all Mr. Schneider's conclusions regarding the impairment of traffic flow, his presentation, including the exhibits he prepared, helped me understand the movement of such traffic in forming my ultimate decision.

Claimants also seek $2,398.75 for the cost of the trial transcript and the deposition transcript of the State's appraiser in lieu of trial testimony. Claimants have submitted documentation of the cost of such transcripts. See exhibit F to claimants' moving papers.

Finally, claimants seek attorneys' fees in the amount of $23,750[2], plus interest from the date of vesting. Such fees are sought in connection with a retainer agreement which provides that claimants' attorneys are to be paid one-third of "all amounts paid or obtained for said property over and above the advance payment by suit, settlement or otherwise." See exhibit C to claimants' moving papers. Such retainer agreements have been found to be "an accepted practice in the field and have been utilized by the courts as a factor in determining reasonable fees." Matter of New York City Transit Authority, 150 Misc 2d 917, 921, 572 NYS2d 613, 616 (Sup Ct Queens County 1991). Similarly, there is authority that claimants are entitled to the contingent fee inclusive of the interest awarded. See, e.g., Brown v State of New York, Ct Cl dated March 27, 2001 (unreported, claim no. 88093, motion no. M-63028, Read, J., UID #2001-001-017); Turiano v State of New York, Ct Cl dated January 8, 2003 (unreported, claim no. 70854, motion no. M-63771, Nadel, J.) .

In this case, the total amount awarded, including statutory interest, was $124,105.28. Claimants are thus entitled to 1/3 of the difference between $124,105.28 and the advance payment of $18,550.00, or $35,185.09.

Defendant does not dispute any specific item sought by claimants, but rather argues that "the fees sought lack proportionality to the issues in contest between the parties and the time and effort necessary to [their] resolution. In fact the additional allowance sought by the claimants, discounting any consideration of statutory interest, [is] roughly one-half of the total award allowed by the court in damages." See ¶8 of the September 22, 2003 affirmation of J. Gardner Ryan. Defendant has cited no authority in support of this argument and there are in fact numerous cases in which the amount awarded under §701 is one-half or more of the underlying appropriation award. See, e.g., Walsh v State of New York, 180 AD2d 290, 585 NYS2d 574 (3d Dept 1992), in which the §701 award was $68,724.00, or more than 79% of the underlying $86,948.00 award. See also Wertheimer v State of New York, 231 AD2d 897, 647 NYS2d 620 (4th Dept 1996) (§701 award of $5,000.00 was granted, more than 58% of underlying $8,488.00 award).

In sum, I find that all fees and expenses sought by claimants were necessary to achieve just and adequate compensation. Accordingly, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-67209 be granted to the extent that claimant is entitled to $35,185.09 for attorney's fees, $7,606.25 for the appraiser's fee, $10,677.38 for the engineer's fee and $2,398.75 for transcript costs, or a total amount of $55,867.47.

Let judgment be entered accordingly.

December 4, 2003
New York, New York

Judge of the Court of Claims

  1. [1]This and other decisions of the Court of Claims may be found at the Court's website:
  2. [2]The $23,750.00 represents 1/3 of the difference between the amount awarded at trial and the initial offer, i.e., 1/3 of ($89,800.00 minus $18,550.00). Such is exclusive of the interest sought.
  3. [3]The following were reviewed: claimants' notice of motion with affirmation in support, memorandum of law and exhibits A-F; defendant's affirmation filed September 24, 2003; and claimants' reply affirmation.