New York State Court of Claims

New York State Court of Claims

FREEMAN v. STATE OF NEW YORK, #2003-018-249, Claim No. 100210, Motion Nos. M-66126, M-66288, M-66386


Synopsis


Defendant's motion is granted and the interest on the judgment is suspended in accordance with Court of Claims Act § 19(4). The Court finds that the award was substantially in excess of the State's initial offer and finds that the appraisal fees incurred were reasonable and necessary for a just award. Based upon the foregoing the Court will award an additional allowance for appraisal fees. The Court finds that the attorneys' contingency fee has been reasonably incurred and an additional award for this fee is necessary.


Case Information

UID:
2003-018-249
Claimant(s):
ELINOR FREEMAN
Claimant short name:
FREEMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100210
Motion number(s):
M-66126, M-66288, M-66386
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DEVORSETZ, STINZIANO, GILBERTI, HEINTZ & SMITH, P.C.
By: KEVIN G. ROE, ESQUIRE SIDNEY DEVORSETZ, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: DONALD E. SHEHIGIAN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 4, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant seeks a suspension of interest on the judgment in accordance with Court of

Claims Act § 19(4) from the expiration of 30 days after notification by the associate attorney general that she was ready to approve title to the property covered by the award and the date claimant provided the necessary documents to the associate attorney general. Claimant asserts that the delay in getting the necessary documents to the associate attorney general was the result of the mortgagee requiring "investigation and/or authorization before it would sign the Release" (Devorsetz letter dated January 15, 2003).

Court of Claims Act § 19(4) provides:

Where an award is made for the appropriation by the state of real

property or any interest therein or for damages to real property

caused by the state, interest thereon, if any, shall be suspended

by the clerk of the court in and by the judgment from the expiration

of thirty days after notification in writing by the attorney-general

to the claimant or his attorney that the attorney-general is ready and

willing to approve title to the property covered by the award upon the

presentation to him of proper proofs, instruments and vouchers to the

date of such presentation, unless otherwise ordered by the court or a

judge thereof on an application by the claimant or his attorney, made

prior to the entry of judgment and on notice to the attorney-general,

showing a satisfactory reason why interest should not be suspended.


Before the entry of judgment, the attorney-general shall notify the clerk

of the court in writing of the period of time, if any, during which interest

on the award shall be suspended pursuant to this subdivision.


The associate attorney general provided the claimant's attorney with notice of readiness to approve title upon presentation of an Affidavit of Title for Map 59; Voucher in duplicate for Maps 56 and 59; Assignment of Claim and Release to be executed by Federal Home Loan Mortgage Corporation for Map 59; and proof of payment of County and Town taxes for the year 1998 for Tax Map parcel 101.00-2-2; and School taxes for the years 1997/98 and 1998/99 for the same parcel (Letter of Associate Attorney General Sharon Knapp to claimant's attorney dated October 28, 2002). Thirty days from the notice by the associate attorney general, plus five days for mailing, required the requested documents to be returned to the associate attorney general by December 2, 2002.

Claimant's attorney promptly forwarded the necessary documents to claimant on October 31, 2002, and to Syracuse Securities, the successor to Federal Home Loan Mortgage Corporation, on October 30, 2002. Claimant did not return the documents to her attorney until December 11, 2002, without any explanation for the delay. Syracuse Securities did not return the Assignment of Claim and Release until January 8, 2003. Claimant's counsel timely forwarded the documents to the associate attorney general upon receipt.

The purpose of Court of Claims Act § 19(4) is to "penalize a claimant who deliberately or negligently fails to clear title to the property appropropriated and to procure the proofs and documents reasonably requested by the Attorney General, while interest continues to run on the award" (D'Agostino v State of New York, 9 AD2d 724, 725; Grossinger Realty Corp. v State of New York, 20 AD2d 602, affd, 15 NY2d 541). Here, there is no explanation for claimant's delay in returning the necessary documents to her counsel. Moreover, the State should not bear the burden of paying interest for the period of time required to obtain the necessary documents from claimant's mortgagee. There is no indication of the amount of follow-up conducted after the October 30, 2002, letter to Syracuse Securities.

Accordingly, defendant's motion is granted and the interest on the judgment is suspended in accordance with Court of Claims Act § 19(4) from December 2, 2002 until January 9, 2003.

Turning to claimant's motion for an award pursuant to Eminent Domain Procedure Law § 701, claimant seeks an order granting additional allowances for expenses incurred in bringing the action to recover for the taking of the property.

Eminent Domain Procedure Law (hereinafter EDPL) § 701 provides that where the order or award in an appropriation action is (1) substantially in excess of the condemnor's proof and (2) where it is necessary for the condemnee to receive just and adequate compensation, the Court may, in its discretion, award to the condemnee an additional amount for actual and necessary costs, disbursements and expenses including reasonable attorney, appraiser and engineer fees actually incurred by such condemnee. Movant here seeks additional compensation for attorney and appraiser fees.

The first determination to be made is whether the award in the appropriation action was substantially in excess of the condemnor's proof. The key comparison is between the award and the State's initial offer of advance payment (First Bank & Trust Co. v State of New York, 184 AD2d 1034). Based upon the documentation submitted, the State's initial offer of advance payment was $37,000 ($33,000 for Map No. 56 and $4,000 for Map No. 59, Parcel No. 67). The Court awarded the sum of $70,935.50. The damages award exceeded the pre-litigation advance payment by $33, 935.50 or about 92%. The Court finds that the award was substantially in excess of the State's initial offer.

The next inquiry is whether an additional allowance for attorney and appraiser fees is necessary in order to provide claimant with just and adequate compensation. Claimant seeks $15,553.78 for attorneys fees, which claimant calculates as thirty-three and one-third percent (33-1/3%) plus interest of the amount awarded by the Court over the State's advance payment from the date of taking, $3,787.50 for appraisal fees, and $1,065.68 for costs and disbursements for a total additional judgment of $20,406.96.

Claimant submits the billing statements from the appraiser. The cost for the appraisal was $1,600. The cost for trial preparation and attendance at the trial was $2,187.50 or a total of 17.5 hours at $125 per hour. In making a determination as to whether an expense incurred by claimant requires a separate award pursuant to EDPL §701 the Court must review the bases for the award and "disregard those expenses and services not contributing thereto"(Meyers v State of New York, 166 Misc 2d 586, 590; Brown v State of New York, unreported decision, Ct Cl, Presiding J. Read, Claim No. 88093, Motion Number M-63028). Costs related to unsuccessful or rejected arguments are frequently rejected (In re Village of Johnson City, 715 NYS2d 775, 777). The Court relied heavily on claimant's appraisal in reaching its decision. The Court, agreed with the claimant's appraiser that the highest and best use of the property, both before and after the appropriation, was residential with authorized accessory use. The discrepancy between the Court's award and the amount the appraiser asserted for direct and consequential damages resulted from the different parcel sizes the court adopted. Accordingly, the Court finds that the appraisal fees incurred were reasonable and necessary for a just award. Based upon the foregoing the Court will award an additional allowance for appraisal fees in the amount of $3,787.50 as necessary for just and adequate compensation.

Claimant also seeks an award for counsel fees. According to claimant's counsel's affirmation, the firm agreed to represent claimant based upon a contingency fee of one-third of any amount including interest recovered in excess of the original offer. Contingency fee arrangements based upon the final award plus interest are commonly used and accepted as a basis for determining attorney fees on an EDPL §701 applications (see, Matter of Hoffman v Town of Malta, 189 AD2d 968; Norboro Realty v State of New York, unreported decision, Ct Cl, O'Rourke, J., filed Oct. 5, 2000, Claim No. 96631, Motion No. M-61971). The Court finds that the contingency fee has been reasonably incurred and an additional award for this fee is necessary in order to achieve just and adequate compensation. Accordingly, the Court awards an additional allowance equal to one-third of the amount plus interest the award exceeds the advance payment set forth in the judgment. The Court also finds that an additional award for the amount of the disbursements ($1,065.68) is also necessary for just and adequate compensation.

Based upon the foregoing, the Court grants claimant's motion for an additional allowance for attorney and appraiser fees and disbursements, in the amount of $20,406.96. This judgment shall be without interest, costs or disbursements.[1]


September 4, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion (M-66126)...............................................................................1


Affirmation of Donald E. Shehigian, Esquire, Assistant Attorney General

in support, with exhibit attached thereto..................................................2


Letter dated January 15, 2003 from Sidney Devorsetz, Esquire,

with attachments in opposition.................................................................3


Affirmation of Donald E. Shehigian, Esquire, Assistant Attorney General

in support..................................................................................................4


Notice of Motion (M-66386)................................................................................5


Affirmation of Sidney Devorsetz, Esquire, in support with exhibits

attached thereto..........................................................................................6


Affirmation of Martin Rowley, Esquire, Assistant Attorney General, in

opposition................................................................................................7



[1]Motion No. M-66288 has been closed. The issues raised have been addressed herein.