New York State Court of Claims

New York State Court of Claims

CMRC v. THE STATE OF NEW YORK, #2004-029-407, Claim No. 94967, Motion No. M-68412


Synopsis


EDPL § 701 - request for additional allowance; denied as Court finds the difference between initial offer and amount awarded by Court is not a "substantial" difference within the meaning of the statute.

Case Information

UID:
2004-029-407
Claimant(s):
CMRC, LTD.
Claimant short name:
CMRC
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94967
Motion number(s):
M-68412
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Goldstein, Goldstein, Rikon & Gottlieb, P.C.By: Michael Rikon, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Victor J. D'Angelo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 7, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, pursuant to Section 701 of the Eminent Domain Procedure Law (hereinafter EDPL) seeks an additional allowance to achieve just and adequate compensation for the appropriation of its property.

The date of the taking was September 16, 1996. The claim was timely filed on October 18, 1996. The matter was transferred to the undersigned on December 15, 2000. The trial regarding this claim was concluded on April 16, 2002. By decision filed on November 4, 2002, the Court awarded claimant the sum of $5,854,550, with interest. Judgment, which claimant appealed, was entered on December 20, 2002. The judgment was affirmed by decision of the Appellate Division, First Department, dated December 23, 2003 (CMRC, Ltd. v State of New York, 2 AD3d 303).

This application by claimant is predicated upon EDPL § 701 as amended effective August 7, 1987. The statute permits a supplemental award of monetary compensation beyond the appropriation award, for actual and necessary costs, disbursements and expenses, including reasonable attorney fees, appraiser fees and engineer fees actually incurred. The legislative intent was to assure that condemnees receive a fair recovery by providing those whose properties have been substantially undervalued (as evidenced by the State's final offer) an opportunity to recover the costs of litigation incurred through successful prosecution of their condemnation claims (see EDPL § 701; General Crushed Stone Co. v State of New York, 93 NY2d 23, 25; Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705, 709-710). EDPL § 701 vests the Trial Court with considerable discretion in order to limit both the incentive for frivolous litigation and the cost of acquiring land through eminent domain (Hakes v State of New York, 81 NY2d 392, citing Governor's Mem Approving Bill, 1987 McKinney's Session Laws of NY, at 2724).

Pursuant to EDPL § 701, the court may exercise its discretion to award an additional allowance only where two conjunctive conditions are met: (1) the award must be substantially in excess of the amount of the condemnor's proof, the appropriate measure there being the difference between the initial offer and the amount ultimately awarded, and (2) the expenses must have been incurred to achieve just and adequate compensation (Matter of County of Tompkins, 298 AD2d 825, 826; Matter of Village of Johnson City [Waldo's, Inc.], 277 AD2d 773, 774; see also Thomas v State of New York, 179 AD2d 945). Thus, the Court must first determine whether the post-judgment award received by claimant was "substantially" in excess of the condemnor's proof. Pursuant to EDPL § 701, the term "condemnor's proof" refers to the State's initial offer, thus the Court must make the finding by comparing the initial offer made by the State with the award granted to claimant post-trial (Matter of County of Tompkins, 298 AD2d 825, supra; Matter of Village of Johnson City [Waldo's, Inc.], 277 AD2d 773, 774, supra; see also Thomas v State of New York, 179 AD2d 945, supra).

In the instant case, the condemnor's proof was expressed by the State in the advance payment to the claimant in the amount of $4,865,000 pursuant to EDPL § 303 (see, Exhibit B attached to Rikon Affirmation) not, as claimant asserts, the State's position at trial, which was $3,600,000[1]. After trial, this Court awarded claimant $5,854,550. Thus, the final award was 20.3 percent greater than the condemnor's offer of $4,865,000.

The Appellate Division, Third Department stated in Matter of County of Tompkins (298 AD2d 825, 826-827):

"With the failure of EDPL 701 to ‘quantify the required excess over the condemnor's proof' (Matter of Village of Johnson City [Waldo's, Inc.], supra at 774), judicial discretion has tempered a standard which recognizes that " ‘ "more than a modest increase in value" ' is required" (id. at 774, quoting Matter of Malin v State of New York, 183 AD2d 899, 900, quoting Governor's Mem approving L 1987, ch 771, 1987 McKinney's Session Laws of NY, at 2724). With the record here supporting Supreme Court's determination that petitioner's initial offer was not inherently unjust or patently inadequate, we must agree that the 22.8% difference between the initial offer and the amount ultimately awarded fails to meet the threshold standard of ‘substantial' (see EDPL 701; compare Matter of County of Clinton [Gagnon], 204 AD2d 898, with Madowitz v State of New York, 288 AD2d 443; Matter of New York State Urban Dev. Corp., 183 Misc 2d 900, 903)."


On April 12, 2004, the Appellate Division, Second Department, in Northville Industries Corp.v State of New York ( AD3d , 774 NYS2d 406) affirmed the decision and order of Court of Claims Judge Richard E. Sise which denied a motion for an additional allowance pursuant to EDPL §701 where the Court's award was 19.45% above the State's initial offer[2].

Based upon the recent appellate decisions in Northville Industries Corp.v State of New York ( AD3d , 774 NYS2d 406, supra) and Matter of County of Tompkins (298 AD2d 825, supra), I find that 20.3% difference between the initial offer and the amount awarded by the Court is not a "substantial" difference within the meaning of the statute. This differential hardly demonstrates that the initial offer was "inherently unjust or patently inadequate". As a result, this Court need not consider the second statutory condition.

Based upon the foregoing reasons, claimant's application for an additional allowance pursuant to EDPL § 701 is denied.

The following papers were read and considered by the Court on claimant's motion:

Papers Numbered


Notice of Motion, Affirmation in Support
and Exhibits Attached 1


Affirmation in Opposition and
Exhibit Attached 2

Reply Affirmation 3


Filed Papers: Decision of Mignano, J., filed November 4, 2002 and

Judgment, entered December 20, 2002 and affirmed December 23, 2003


July 7, 2004
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims



[1] The Court uses the amount of $4,865,000 because this is presumably the compensation claimant could have accepted without trial. Thus, any expenses incurred must be weighed as to "necessity" with reference to this amount.
[2] See also, Matter of Village of Johnson City [Waldo's Inc.], 277 AD2d 773, 775 [19%], collecting cases; Matter of New York State Urban Dev. Corp. [42nd St. Dev. Project], 183 Misc 2d 900, 902 [excess of 19.79% not substantial].