New York State Court of Claims

New York State Court of Claims

TARTAN v. THE STATE OF NEW YORK, #2003-030-547, Claim No. 95057, Motion No. M-66488


Claimant's motion for additional allowance for actual and necessary expenses pursuant to EDPL §701 granted in part and denied in part.

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:
Third-party defendant's attorney:

Signature date:
May 28, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks an Order, pursuant to Eminent Domain Procedure Law § 701, awarding an additional allowance for actual and necessary costs, disbursements and expenses, including reasonable attorney and appraiser fees expended in this appropriation proceeding. The following papers, numbered 1 to 7 were read and considered by the Court:
1-5 Notice of Motion, Affidavit of Kenneth L. Robinson, Esq., Affidavit of Robert
Topper, Esq, Affidavit of Elinor Brunswick, MAI; Affidavit of Philip Cimino, P.E. and accompanying exhibits

6 Affirmation in Opposition of Rose Farrell Lowe, Assistant Attorney General, and accompanying exhibits

7 Reply Affirmation of Kenneth L. Robinson, Esq., and accompanying exhibits

After careful consideration, the motion is disposed of as follows:

Claimant seeks an additional allowance of $80,377.56, particularized as (1) counsel fees in the amount of $55,792.02; (2) appraisal fees in the amount of $19,900.00; and (3) fees for engineering work in the amount of $4,685.54.

Eminent Domain Procedure Law §701 gives the Court discretion to award a claimant an additional amount, separately computed and stated, for actual and necessary costs, disbursements and expenses incurred in connection with an appropriation proceeding.[1] Before the Court may grant an additional allowance, however, two conditions must be satisfied. First, the award in the underlying appropriation proceeding must be substantially in excess of the amount of the defendant's proof. Second, the expenses claimed must have been necessarily incurred to "achieve just and adequate compensation." Eminent Domain Procedure Law § 701; see, Hakes v State of New York, 81 NY2d 392, 396 (1993). The appropriate standard to determine whether the award is substantially in excess of the condemner's proof is the difference between the Defendant's initial offer and the amount ultimately awarded by the Court. Id.

More than a "modest" difference in value is required [See, Matter of Malin v State of New York, 183 AD2d 899, 900 (2d Dept 1992)] to be viewed as an award that is "substantially in excess" of the initial offer. Matter of Town of Islip v Sikora, 220 AD2d 434 (2d Dept 1995); Matter of Village of Johnson City, 277 AD2d 773 (3d Dept 2000).

In this case, the advance payment offer from the Defendant had been in the amount of $232,600.00 [Robinson Affidavit, Exhibit "B"]. By Decision filed December 31, 2002 this Court granted Claimant an award of $608,367.00 [Topper Affidavit, Exhibit "1"]. This Court's award was 161% in excess of the State's initial offer. At trial, the State did not offer any proof of value, thus the condemnor's proof at trial cannot be included in any analysis. The amount awarded by the Court is clearly substantially in excess of the Defendant's initial advancement. Indeed, courts have upheld additional allowances in cases where the difference was the same or far less. See, e.g., Matter of Town of Islip v Sikora, supra, (award was 37% or $204,207.00 above the condemnor's proof); Karas v State of New York, 169 AD2d 816 (2d Dept 1991) (award 41.6% or $75,718 above the condemnor's proof); But c.f., Matter of Village of Johnson City, supra, at 777 (19% of original offer, or $81,700.00). Accordingly, the Court is satisfied that the ultimate award was substantially in excess of the initial offer, thus Claimant has satisfied the first requirement for an additional allowance.

As to whether the claimant's litigation costs were necessarily incurred, courts examine whether such expenditures were incurred with the aim of achieving a just result and without advancing far-fetched or "unrealistic" legal theories with no foundation in fact. Hakes v State of New York, supra, at 396.[2]

The Affidavit of Robert Topper is presented as that of "one of the Trustee(s) of the TARTAN CORP. LIQUIDATING TRUST ("TARTAN"), which is the successor-in-interest to Tartan Corp." [Affidavit in Support of Motion by Robert Topper, Esq., ¶1]. His affidavit recites the general facts of the claim, and notes that "as a result of the State of New York's taking of Tartan's property, the Claimant incurred...extraordinary expenses for necessary expert witnesses and attorneys fees beyond the costs of the real estate and fixture appraisal reports" in the total amount of $80,377.56, as set forth in the affidavits of Kenneth L. Robinson, Esq., the attorney handling the matter, Elinor Brunswick, MAI, Claimant's appraiser and Philip Cimino, P.E., Claimant's engineer.

The subject property is a gasoline service station on the corner of Miller Place Road and Route 25A in Miller Place, New York. To their credit, several stipulations were entered into by the parties during the trial. The value of a temporary easement, the cost to cure of restoring pump islands and installing a third island, as well as the value of the subject property as vacant land after the taking were all the subject of stipulation. In the final Decision of the Court filed December 31, 2002, the Court indicated that because the Defendant chose not to present any evidence by way of its own appraisal or its own engineer's report, the Court was left with no range of testimony concerning value from which to assess the value of the property before and after the date of vesting. Given only the Claimant's expert's opinions, the Court could only vary its findings from those of the Claimant's expert if there were sufficient evidence presented to support such variance. Defendant was able to point out two readily correctable errors in the appraisal, but in all other respects the Claimant's appraisal was relied on by the Court and accorded weight for the ultimate determination of just compensation. Specifically, the Court indicated it agreed with the appraiser's assessment of highest and best use before and after the taking, and adopted the finding of the claimant's expert as to value - except with respect to the referred to error concerning calculation of the cost to cure - as its own finding.

The State argues that because the named Claimant, Tartan Corp., may no longer be in existence, and Tartan Corp. Liquidating Trust has not been substituted as Claimant, the present application will not lie. The State also argues the application cannot lie because Mr. Robinson no longer represents Tartan Corp. Liquidating Trust, having executed a change of attorney form in connection with proceedings in Nassau County Supreme Court surrounding contractual rights to payment of condemnation awards to the purchaser of Tartan Corp., Leon Petroleum LLC. [See, Affirmation of Assistant Attorney General, Exhibits "A" and "B"]. According to the January 3, 2003 Short Form Order of the Nassau County Supreme Court, rendered upon cross-motions for summary judgment, Leon Petroleum LLC is contractually entitled " receive compensation awarded by the State of New York for takings of certain parcels of real property...[including ] Miller Place Road...which shall be or has been received after the closing of the Contract." [Ibid, Exhibit "B"]. Whether any monies awarded herein would thus devolve to the contract vendee is not a question for this Court. This Court is concerned with determining whether achieving just compensation warrants an additional allowance for expenses necessarily incurred. As noted by Mr. Robinson in his Reply Affirmation, Tartan Corp. Liquidating Trust is the vehicle through which Tartan Corp. is winding up its affairs, in accordance with Business Corporation Law §1006. Additionally, the Nassau County Supreme Court determination is both the subject of a renewal motion and an appeal. [See, Reply Affirmation of Kenneth L. Robinson, Esq., Exhibit "1"].

Similarly, the fact that in connection with the Nassau County Supreme Court action counsel of record in this Claim was a signatory to a consent to change attorney form is not relevant, given the limited issue before this Court. There is no indication that Mr. Robinson was substituted in connection with this proceeding, nor that the compensation sought herein does not reflect the actions taken by the professionals hired by Claimant to achieve just compensation.

In counsel's affirmation in support of the present motion, Kenneth L. Robinson, Esq. affirms the essential procedural history of the claim, and the expenditures associated with its prosecution. The total legal fee claimed is $55,792.02, and does not include the period between the filing of the claim for damages on November 4, 1996 to 1999, when the attorney apparently held a general counsel position with Claimant. Disbursements have not been requested. Several different condemnation proceedings involved this Claimant, and had been handled by the attorney. The only retainer agreement included as an exhibit is dated June 18, 1999, in letter form, and is addressed to Stanley Kleinberg, President, Tartan Corp. [Reply Affirmation by Kenneth L. Robinson, Esq., Exhibit "2"]. It provides that the client will be billed on an hourly basis, and refers to two attached schedules but includes only a portion of one. [See, Id]. Counsel has also included billing sheets referencing "Tartan v NYS-S/W/C Miller Place Road" detailing activity from August 16, 1999 to November 13, 2002. [Affidavit of Kenneth L. Robinson, Esq., Exhibit "A"]. Unfortunately, these billing sheets do not seem to be sequential, and in some cases appear to refer to other claims involving this same Claimant. Similarly, some of the work detailed does not refer to counsel's attempts to achieve just compensation for his client, but rather some ancillary issues that arose and have been addressed in another forum.[3] In the narrative portion of counsel's description of the services he performed in connection with this Claim actual time spent on the particular activities described is not noted, although based on the Court's experience an hourly assessment can be made by comparing these narrative portions with the billing records. [See, Affidavit of Kenneth L. Robinson, Esq., ¶¶ 8-9].

While the Court is not bound by the terms of a fee arrangement, the arrangement presented here is commonly used, and reflects the efforts experienced counsel expended to attain a just result for Claimant. Six (6) years were spent on this case, although only three (3) years of bills were presented. The Court finds Counsel's hourly fee of $150.00 reasonable, as well as the hourly charges for associates in the amount of $115.00, $65.00 per hour for paralegals, and $35.00 per hour for secretaries. Based on a comparison of the narrative portion of Counsel's Affidavit, the billing records, and the Court's own experience with this case and in general in cases of this type the reasonable value of the services specifically rendered in order to achieve just compensation in this case is in the amount of $25,000.00, and Claimant is hereby granted attorney's fees in that amount. The attorneys' fees were necessarily incurred by claimant and it is entitled to the additional allowance sought in this regard. See, Norboro Realty v State of New York, Claim No. 96631, Motion No. M-61971 (O'Rourke, J., August 27, 2000).

The portion of the present application seeking an additional allowance for appraiser fees is also granted, with some modification. Claimant has provided the affidavit from the appraiser, Elinor Brunswick, indicating that she was retained in 1997 to prepare an appraisal, attend conferences in connection with the claim, testify at trial, and assist in the preparation of the post-trial memorandum as well. She asks for a total of $19,900.00, representing $9,500.00 for the appraisal itself, and an additional $10,400.00 for trial preparation and testimony. She attended all four (4) days of trial, billing $2,000.00 per day for the service. [See, Affidavit of Elinor Brunswick, MAI, Exhibit "B"]. As noted above, the Claimant's appraiser's report was relied upon heavily by the Court in reaching its determination.

The State argues that the fee requested "for a routine court appraisal and trial is well in excess of any appraisal awards for similar type cases in Suffolk County. The average appraisal and trial fees of this nature none has been in the range of $10,000.00 to $12,500.00, and your deponent respectfully requests that the court exercise its discretion and not award a fee of $19,900.00 to be paid by the People of the State of New York." [See, Affirmation of Assistant Attorney General, ¶5].

In this Court's view, while it certainly is not bound by the appraiser's own assessment of the value of the services rendered, it is also not bound by a declaration by the State that this "routine" matter only warrants a fee within the range for "similar type cases in Suffolk County", without any authority for such a declaration being presented. Since the State chose not to introduce any evidence of value on its own case, the Court relied extensively on the efforts of Claimant's appraiser. Some elements of the appraisal were clearly less helpful than others, and the Court will disregard those expenses and services that did not contribute to the analysis for the trial award. Accordingly, the Court concludes that appraiser fees in the amount of $14,000.00 are appropriate in this matter, since these expenses were necessarily incurred to achieve just and adequate compensation.

Finally, Claimant seeks compensation for payments made to PSC Engineering (hereafter PSC), a firm hired by Claimant whose report, however, was never filed or submitted in connection with this Claim. In the engineer's affidavit, he indicates that he was hired in 1997 to perform traffic studies in connection with three different appropriations, for which he charged a total of $14,056.63. [Affidavit of Philip Cimino, PE, ¶¶3-5, Exhibit "2"]. Mr. Cimino suggests that the fee in connection with this claim would be 1/3 of that total, or $4,685.00. [Ibid, ¶5]. Claimant indicates that although the report was not submitted at trial, the traffic flow diagrams prepared by PSC were incorporated into the report of Mr. Leon, which was admitted into evidence. The State argues that PSC never submitted or filed an engineering report in this case, the billing records furnished relate to a different claim as well, the amounts requested are far in excess of disbursements appropriate for Court of Claims engineering, and the State had no opportunity to review or challenge any PSC material since it was not submitted. [See, Affirmation of Assistant Attorney General, ¶6]. A review of the Court's decision, however, reveals that the opinions in the Leon Report was given little weight, although the "data compiled" "was used by the claimant's appraiser and therefore, interpreted by an appropriate expert for the purpose of valuing the subject property in an appropriate manner." [See, Pages 5-6, Tartan v State of New York, Claim No. 95057, Scuccimarra, J., December 31, 2002]. The connection between the expenditures for engineering services and the degree to which the Court relied upon those services in analyzing what would be just compensation in this claim is far too tenuous. Accordingly, the application for fees in connection with the engineering services is hereby denied.

Accordingly, Claimant's motion is granted in part and denied in part. Claimant is awarded the total sum of $39,000.00 for the actual, reasonable and necessary expenses established herein:
Attorneys' fees $25,000.00
Appraiser fees 14,000.00
TOTAL: $39,000.00

The Clerk of the Court is directed to enter judgment accordingly.

May 28, 2003
White Plains, New York

Judge of the Court of Claims

[1] The statute provides in pertinent part: "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,...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."
[2] "While noting that none of these fees [for attorneys and appraisals] were unreasonable for the work performed, the court [of claims] exercised its discretion and made no award. The court [of claims] based its denial of reimbursement on its conclusion that claimants' fees were expended primarily in an unrealistic attempt to prove consequential damages to a nonappropriated parcel. Since that theory was rejected and had no bearing on the actual damages awarded, the court explained that it would not reimburse the fees. While noting that a fee award could be warranted for claimants' efforts in disputing the lack of access to Parcel B, the court explained it would not make such award in the absence of evidence of fees and costs expended on that point...."
[3] See, Leon Petroleum, LLC v Tartan Corp., Tartan Corp. Liquidating Trust, Stanley Kleinberg, Robert Topper, Marc Holliday and State of New York, Index No. 014684/2002, Decision January 3, 2003, attached as Exhibit "B" to Affirmation of Assistant Attorney General.