New York State Court of Claims

New York State Court of Claims

SMYLES v. THE STATE OF NEW YORK, #2003-028-512, Claim No. 91871, Motion No. M-65902


Synopsis


The Court denied Claimant's EDPL 701 application without prejudice to renewal upon a complete application.

Case Information

UID:
2003-028-512
Claimant(s):
ARTHUR SMYLES AND POPY SMYLES
Claimant short name:
SMYLES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
91871
Motion number(s):
M-65902
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
KOEPPEL MARTONE LEISTMAN & HERMAN, L.L.P.BY: Kevin M. Clyne, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Rose Farrell Lowe, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 4, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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

1) Notice of Motion filed October 10, 2002 with Supporting Affirmation of Kevin M. Clyne (Clyne Affirmation) and annexed Exhibits A-G[1].

2) Affirmation in Opposition of Assistant Attorney General Rose Farrell Lowe, (Lowe Affirmation), filed October 21, 2002.

3) Reply Affirmation of Kevin M. Clyne (Clyne Reply).


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

At the initial trial of this Claim, the Court (Silverman, J.) struck Claimants' appraisal report and upon the Defendant's proof entered judgment "against the defendant in the principal sums of only $381,000 for the permanent appropriation of their property, and $625 per month for a temporary easement" (see, Smyles v State of New York, 295 AD2d 437, 438). On appeal, the judgment was reversed and the matter is remitted to this Court. The Appellate Division held that "only those transactions which could not be verified by the State should have been rejected" (id.) and not the entire appraisal report. Following the remand of this Claim to the Court the parties in open court placed a stipulation on the record whereby the Claim was settled for $700,000.00 inclusive of interest, representing Claimants' severance and consequential damages (see, Clyne Affirmation, Exhibit E) and reserving Claimants' right to make an EDPL § 701 application.

Claimants now seek an additional allowance for actual and necessary costs, disbursements and expenses pursuant to EDPL § 701. The Defendant has opposed the application only to the extent of taking issue with the appraiser's fee (Lowe Affirmation, ¶ 5), and the attorneys fee (id. ¶ 6) arguing that the attorneys fee should be reduced "by 50% or some other percentage"(id.) and that the appraisal fee be reduced to $4,500.00 (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 New York, 93 NY2d 23, 28).

EDPL § 701, last amended in 1987 (Laws of 1987, Chapter 771), provides as follows:
In instances where the order or award is substantially in excess of the amount of the condemnor's proof and where deemed necessary by the court for the condemnee to achieve just and adequate compensation, the court, upon application, notice and an opportunity for hearing, may in its discretion, award to the condemnee an additional amount, separately computed and stated, for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees actually incurred by such condemnee. The application shall include affidavits of the condemnee and all parties that have incurred expenses on the condemnee's behalf, setting forth inter alia the amount of the expenses incurred (emphasis added).
The instant application does not contain an affidavit from the condemnee. In the Court's view, compliance with the statute authorizing the additional relief contemplated by § 701 is required. Inasmuch as this Court would deny an additional allowance for appraisal fees when the affidavit of the appraiser regarding same was omitted from the §701 application (see, Northville Industries Corp. v State of New York, Ct Cl, UID#2002-028-052, Claim No. 97489, Motion No. M-64964[ September 17, 2002]) it necessarily follows that there can be no relief whatsoever when the beneficiary of § 701, the condemnee, has not submitted an affidavit, which, at a minimum, requests the relief available.

Accordingly, Claimants' motion for an additional allowance is denied without prejudice.

March 4, 2003
Albany, New York

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




[1] The affidavits of Claimants' appraiser, Ronald Haberman and Claimants' engineer, Steven Schneider, are annexed to the moving papers as Exhibits F and G, respectively, and for ease of reference will be referred to by name.