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,
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
. 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
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
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
Notice of Motion, Affirmation in Support