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.
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
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
, Ct Cl dated March 26, 2002 (unreported, claim no. 88245, motion
no. M-63947, Read, J., UID #
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
, 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.
, 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
, 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
Let judgment be entered accordingly.