New York State Court of Claims

New York State Court of Claims

CAMPERLINO v. STATE OF NEW YORK, #2004-018-308, Claim No. 99592, Motion No. M-67976


Synopsis


The Court grants claimant's motion for an additional allowance for legal and appraisal fees, and for disbursements.

Case Information

UID:
2004-018-308
Claimant(s):
W. JAMES CAMPERLINO
Claimant short name:
CAMPERLINO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99592
Motion number(s):
M-67976
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DEVORSETZ STINZIANO GILBERTI HEINTZ & SMITH, P.C.By: 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:
June 8, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant brings this motion pursuant to Eminent Domain Law §701 seeking an order

granting additional allowances for expenses incurred in bringing an action to recover for the taking of his property.

Eminent Domain Procedure Law (hereinafter EDPL) § 701 provides that where the order or award in an appropriation action is substantially in excess of the condemnor's proof, and 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 legal, appraisal and engineering fees actually incurred by such condemnee. Movant, here, seeks additional compensation for legal and appraisal fees and other disbursement costs.

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. of Corning v State of New York, 184 AD2d 1034). This appropriation involved the taking of two separate parcels, referred to as Economic Unit #1 (Map Number 167, Parcel Number 229) and Economic Unit #2 (Map Number 132, Parcel Number 189). The State of New York made a total advance payment of $83,575, which included an advance payment of $64,425 for Economic Unit #1, and $19,150 for Economic Unit #2. The Court, after trial, awarded total damages in the amount of $110,849, which sum includes damages of $76,545 for Economic Unit #1, and $34,304 for Economic Unit #2. In determining whether the Court's award of damages is "substantially in excess of the condemnor's proof," a review of other cases revealed that there is no longer any clear cut consensus on what is "substantial"[1](for example, Matter of New York State Urban Development Corp., 183 Misc 2d 900, 902 [$950,00 difference between the initial offer and the award (19.8%) not substantial]; Matter of County of Clinton, 204 AD2d 898, 900 [$3,287 difference between the initial offer and the award (51.7% ) not substantial]; Matter of County of Tompkins, 298 AD2d 825, 826 [$80,000 difference between the initial offer and the award (22.8%) not substantial]; Town of Islip v Sikora, 220 AD2d 434 [$184,207 difference between the initial offer and the award (32.3%) was substantial]; Karas v State of New York, 169 AD2d 816 [$75,718 difference between the initial offer and the award (41.5%) was substantial]; Filmar Homes, Inc. v State of New York, Ct Cl, unpublished decision of Patti, J., filed August 5, 1998, Claim No. 93116, Motion Nos. M-57141, M-57314 [ $32,500 difference between the initial offer and the award (38.8%) was substantial]). Here, the difference between the defendant's initial total offer and the Court's total award of damages was $27,274; or alternatively, the Court's award exceeded defendant's offer of proof by 32.6%. The Court finds that this difference is sufficient to meet the first threshold inquiry for this application.

The next inquiry is whether an additional allowance for legal and appraisal fees, and disbursements is necessary, in order to provide claimant with just and adequate compensation. Claimant seeks $13,590 for attorneys' fees, $12,125 for appraisal fees, and $856.94 for disbursements for a total additional judgment of $26,571.94.

Claimant submits an affidavit from John R. Mako, the appraiser retained by claimant (Claimant's application Exhibit C). Mr. Mako indicates that the appraisal fee involved several visits to the subject properties and comparable sales, preparation of the actual appraisal report , and pre-trial preparation with claimant's counsel, which included a critique and review of the State's appraisal report and an inspection of the State's comparable sale properties. Mr. Mako has attached an itemized bill to his affidavit; there are actually three statements. The first, dated May 8, 2002 references the testimony and trial preparation for both parcels at a cost of $5,625. The other two statements are both dated January 5, 2001, and reference the appraisal of the separate parcels. The statement for the appraisal of Economic Unit #1 ( Map Number 167, Parcel Number 229) shows a balance due of $3,500. The statement for the appraisal of Economic Unit #2 (Map Number 132, Parcel Number 189) shows a balance of $3,000, which was paid on March 8, 2002.

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 basis 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, UID No. 2001-001-017). Costs related to unsuccessful or rejected arguments are frequently rejected (Matter of Village of Johnson City, 715 NYS2d 775, 777). Here, the Court relied on claimant's appraisal report, after making certain adjustments, to determine the value of the property and direct damages. The Court, however, rejected claimant's appraiser's position that Economic Unit # 2 suffered indirect damages as a result of the appropriation. The Court found, instead, that there was no appreciable change to the value of the property after the taking, because the actual land appropriated was so small. Although the invoices from Mr. Mako do not break down the amount of time spent on each portion of damages for each parcel, the Court, in its discretion, will award an additional allowance for appraisal fees in the amount of $10,185 (which represents the percentage by which consequential damages argument inflated claimant's proof for Economic Unit #2).

Claimant also seeks an award for counsel fees. Claimant and his counsel agreed to a contingency fee of one-third of any amount awarded, including interest, in excess of the original offer. The actual retainer agreement was not provided to the Court. Contingency fee arrangements, based upon the final award plus interest, are a commonly used and accepted basis for determining attorney fees on 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., Claim No. 96631, Motion No. M-61971, UID No. 2000-017-035). 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.

Claimant will receive interest at the rate of 9%, pursuant to statute, from the date of taking for six months, and then from the date the claim was filed to the date of the Court's Decision, and thereafter to the date of judgment. Since payment on the judgment has not yet been made, I cannot calculate the fee counsel will earn. However, the Court has estimated the interest calculation, and based upon that calculation, the sum claimant seeks for attorneys' fees is reasonable.

The claimant also seeks an award for disbursements. Defendant takes objection to these asserted expenses, specifically, the charges for tax bills, subpoena fees, appraisal copies, and photocopy charges. The Court agrees with defendant that the necessity of the charges for the tax bills, subpoena fees and appraisal copies are unexplained, as well as the cost for Federal Express, and long distance telephone charges. These charges have not been shown to be necessary for just and adequate compensation. Accordingly, the Court awards $677.40 for disbursements as necessary for just and adequate compensation.

Based upon the foregoing, the Court grants claimant's motion for an additional allowance for legal and appraisal fees and disbursements in the amount of $24,452.40. This judgment shall be without interest, costs or disbursements.

LET JUDGMENT BE ENTERED ACCORDINGLY.


June 8, 2004
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......................................................................................1


Affirmation of Sidney Devorsetz, Esquire, in support, with exhibits

attached thereto............................................................................2


Affirmation of Donald E. Shehigian, Esquire, Assistant Attorney

General, in opposition..................................................................3


[1] The 1987 predecessor statutory language to the current EDPL §701 required that the award be at least 200% more than the amount of the condemnor's proof (see, L.1987, ch. 771, §1).