New York State Court of Claims

New York State Court of Claims

SMYLES v. THE STATE OF NEW YORK, #2003-028-554, Claim No. 91871, Motion No. M-66583


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):

Claimant's attorney:
Defendant's attorney:
BY: Rose Farrell Lowe, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 3, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


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

1) Notice of Motion filed March 25, 2003 with Supporting Affirmation of Kevin M. Clyne (Clyne Affirmation) and annexed Exhibits A-G[1] and Supporting Joint Affidavit of Arthur Smyles and Popy Smyles (Smyles' Affidavit)

2) Affirmation in Opposition of Assistant Attorney General Rose Farrell Lowe, (Lowe Affirmation), filed April 10, 2003

3) Reply Affirmation of Kevin M. Clyne (Clyne Reply) filed April 15, 2003.

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 was 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, 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. 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).

At the time of the taking, the State offered $227,850.00 as payment for the taking (Clyne Affirmation, ¶ 5). Claimants accepted the State's initial offer as an advance payment only and sought counsel and commenced this action. To obtain a fair and just valuation of their property, Claimants hired an appraiser whose fees were $6,500.00 for the report, $1,000.00 for a single court appearance and $1,800.00 for trial preparation (see Haberman Affidavit). The total due the appraiser was $9,300.00. Claimants also hired an engineer whose fees were $3,700.00 to prepare his report and $3,220.00 for trial preparation, court appearance and review of Defendant's reports (see Schneider Affidavit). The total due the engineer was $6,920.00. Claimants' attorneys seek $141,645.00 in attorneys fees, and disbursements totaling $1,157.00 (Clyne Affirmation ¶ 22). Claimants thus seek an additional allowance of $159,022.00.

The Defendant has opposed the application only to the extent of taking issue with the appraiser's fee (Lowe Affirmation, ¶ 6), the engineering fee (id. ¶ 7) and the disbursements (id. ¶ 8).

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 Court's discretion.

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 three times or 300% 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).


Claimants retained their original counsel [2] on a graduated contingent fee basis (Smyles' Affidavit, ¶ 5; Clyne Affirmation, ¶ 20; Exhibit B), which agreement was adopted by their current counsel (Clyne Affirmation ¶ 10, Exhibit C). "The terms of the retainer agreement between Claimants 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, Ct 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). The retainer agreement provided for compensation to be calculated as follows:
Thirty (30%) percent of the overage beyond the advance payment, up to $400,000. (A), Twenty (20%) percent on the next $400,000. (B), and Ten (10%) percent on any amount over $800,000. (A & B combined), ...
(Exhibit B). Inasmuch as Claimants seek attorneys fees in the amount of $141,645.00 (Clyne Affirmation ¶ 22), it is clear that the attorneys fees were calculated on the full overage amount ($472,150.) at 30% (id.). This, the Court finds is contrary to the plain language of the retainer agreement. Accordingly, the Court calculates the attorneys fees to be $134,430 (400,000 x.30 + 72,150 x .20 = $120,000 + $14,430) and the Court finds the fees charged by Claimants' attorneys for prosecuting this action (and consequently obtaining for Claimants an amount over three times the amount originally offered by defendant, before interest) both reasonable and incurred "to achieve just and adequate compensation" (EDPL 701). Accordingly, the Court awards an additional allowance for attorneys fees in the amount of $134,430. The Court declines to award Claimants $1,157.24 for disbursements and expenses, (not for the reasons advanced by Defendant that such are duplicative of attorneys fees (see Lowe Affirmation ¶ 8), but rather because same are wholly unsubstantiated).


With regard to the fees paid to the appraiser, there can be no doubt that the services of an appraiser, and in particular the preparation of a report, as well as pre-trial assistance from the appraiser was necessary for Claimants to evaluate and pursue this Claim. The trial court's striking of the report and the Appellate Division's subsequent reversal and remand, has cast a pall, so Defendant argues, over the value, if any, of the appraiser's services (Lowe Affirmation ¶ 6), while Claimants defend the report and appraisal services (Clyne Reply ¶¶ 3-6). There is merit to Defendant's position, such that a reduction to the request is appropriate. Notwithstanding the trial difficulties, the report had value both in preparation and ultimately, in settlement of this Claim. Clearly, it was unlikely to achieve what might be described as its full value, given the Appellate Division's holding, had this matter proceeded to trial (see e.g. Matter of Village of Johnson City, 277 AD2d 773, 775; First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034). Likewise, the Court does not accept Defendant's bare assertion that the running of interest during the appeal process compelled a settlement that nearly doubled the prior judgment. Given the chain of events at the trial of this action, the Court can not approve the flat fee charge of $1,000.00 for the Court appearance on November 29, 1999. In light of the foregoing, and in the exercise of the Court's discretion, the Court finds it appropriate to reduce the award for appraisal services to $8,300.00, which sum the Court finds to be reasonable and necessary.


Claimants request $6,920.00 to cover the cost of their engineer (Smyles' Affidavit ). Defendant opposes this request only as to the amount sought, suggesting that $3,990.00 is the appropriate amount, and not as to the propriety of an award (Lowe Affirmation, ¶ 7). Defendant's arguments that there is nothing unique about this work product, that compensation is sought for work performed on the file by others in the engineering firm and the annexed invoices are inadequate and without merit. The Court will acknowledge, as Defendant points out, that the bills submitted in support of the application could, and perhaps should, contain more detailed descriptions of the services performed (see e.g. Matter of Rourke v New York State Dept. of Correctional Servs., 245 AD2d 870, 873, 874), they are not so barren as to prevent the Court from making an award. As such, the expense associated with the engineering services were reasonable and necessary and incurred to achieve just and adequate compensation. Accordingly, the Court awards an additional allowance of $6,920.00 for engineering services.


Based upon the foregoing, the Court finds that the reasonable and necessary expenses that Claimants have incurred to be $149,650.00. Without the additional allowance, the net proceeds of the award, plus interest would be substantially less of what was found to be just or adequate compensation. An award without these expenses would be grossly inadequate. Claimants are awarded an additional allowance for the necessary costs and expenses as set forth previously.

Accordingly, the motion is granted to the extent indicated. The Clerk shall enter an additional judgment in favor of Claimants in the amount of $149,650.

July 3, 2003
Albany, New York

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.
[2] Substitution of counsel (see Exhibit A) was effectuated when Claimants' former counsel was elected to the bench (Smyles' Affidavit ¶ 9).