New York State Court of Claims

New York State Court of Claims

COLDIRON v. THE STATE OF NEW YORK, #2005-019-504, Claim No. 102518, Motion No. M-69389


Synopsis


Claimant's motion for an additional allowance for attorney's fees and disbursements, as well as appraiser and surveying fees pursuant to EDPL 701 is granted in part and denied in part.

Case Information

UID:
2005-019-504
Claimant(s):
COLDIRON FUEL CENTER, LTD.
Claimant short name:
COLDIRON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102518
Motion number(s):
M-69389
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DeFILIPPO & PROUDFOOTBY: Frederick J. DeFilippo, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 26, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for an additional allowance for attorney's fees and disbursements, as well as appraisal and surveying fees pursuant to EDPL 701. The State of New York (hereinafter "State") opposes the motion.

In August 1999, pursuant to the EDPL and Highway Law § 30, the State appropriated five contiguous parcels of land owned by claimant in the Town of Ashland, Chemung County, New York. A trial was held in the Binghamton District on July 17 and 18, 2002. The date of vesting was stipulated at trial as August 12, 1999. Pursuant to EDPL 304, the State made an advance payment of $645,000. (Claimant's Exhibit B). By Decision, this court awarded claimant damages for the taking in the total amount of $853,450 with statutory interest. (Coldiron Fuel Ctr., Ltd. v State of New York, Ct Cl, March 27, 2003, Lebous, J., Claim No. 102518 [UID No. 2003-019-004]).[1] On appeal, the Third Department decreased the amount of the award by $330 for a total award of $853,120 with statutory interest. (Coldiron Fuel Ctr., Ltd. v State of New York, 8 AD3d 779).


Claimant now seeks an additional allowance pursuant to EDPL 701 for appraisers, surveyor, and attorney's fees. The State opposes the application without offering any substantive arguments on the merits or dispute on the amount of fees requested. It is well-settled that EDPL 701 provides a means for a claimant/condemnee to apply for costs associated with the prosecution of an appropriation action, including reasonable attorney's fees and appraisal and surveying expenses, when "[t]he 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." (EDPL 701). The policy underlying this statute is meant to "[p]rovide a means of mitigating the financial damage wrought by the condemnor's low, original offer." (General Crushed Stone Co. v State of New York, 93 NY2d 23, 27). The court must assess whether: (1) the award is substantially more than what was initially offered by the condemnor; and (2) the expenses were incurred to achieve just and adequate compensation. (EDPL 701; Matter of Vil. of Johnson City [Waldo's Inc.], 277 AD2d 773, 774). The additional allowance is not mandatory and the determinations are left to the court's discretion.

  1. Was the award substantially more than the initial offer?
Here, the State's initial offer was $645,000, and the court's award after trial, excluding interest, was $853,450. After appeal, this trial court's award was adjusted downwards $330 to $853,120. Thus, the $208,120 discrepancy between the State's initial offer and the award adjusted after appeal equates to a difference of approximately 32.27%.[2] There is no magic threshold with respect to either the percentage or dollar amount difference in determining whether an award is substantially more than the initial offer.[3] Here, the court finds that the $208,120 difference between the initial offer and amount awarded (after appeal) and 32.27% deviation is substantial within the meaning of EDPL 701.

  1. Whether the expenses were incurred to achieve just and adequate compensation
Next, the court considers whether the fees were incurred "to achieve just and adequate compensation." (EDPL 701). Claimant seeks to recoup the expenses associated with two appraisers, John S. Miller and Robert G. Pogel, as well as surveyor, Eric Gabrielson, all of whom testified at trial, as well as attorney's fees.

  1. Real Estate Appraisers
Claimant indicates that two appraisers were retained because Mr. Miller was hired to prepare a report independent of Mr. Pogel, due to Mr. Miller's "vast experience in valuing gasoline service stations." (Affirmation of Frederick J. De Filippo, Esq., ¶ 17). Claimant seeks to recover the full fees charged by both appraisers. It is clear that the use of expert appraisal testimony was necessary to achieve just and adequate compensation. The remaining question, however, is whether the use of two appraisers was necessary to achieve said result.


(1). John S. Miller

Claimant seeks to recoup Mr. Miller's fee of $7,833.25. At trial, Mr. Miller presented an appraisal analysis and report premised upon the income capitalization approach which included an analysis of gallonage as a method of valuation. However, this court rejected Mr. Miller's theory of gallonage, while accepting his appraisal to the extent he valued the land as vacant in both the before and after situation. (Coldiron, Ct Cl, at pp 6-7). The Third Department did not disturb that portion of this court's decision that rejected Mr. Miller's gallonage theory. (Coldiron, 8 AD3d 779).


Applications under EDPL 701 for reimbursement for costs related to unsuccessful or rejected arguments have generally met with little success. (Vil. of Johnson City, 277 AD2d at 775; First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, 1035, affd sub nom., Hakes v State of New York, 81 NY2d 392; Meyers v State of New York, 166 Misc 2d 586, 589). In other words, the court may disregard expenses and services not contributing to the ultimate award. (Matter of Estate of Haynes v County of Monroe, 278 AD2d 823, 825, lv denied 96 NY2d 712). Accordingly, the court finds that a one-half reduction of Mr. Miller's fee is appropriate to reflect the rejection of the gallonage argument, while acknowledging the use of his valuations. Accordingly, the court finds that claimant is entitled to recover $3,916.63 [$7,833.25 - 3,916.62 (1/2)] as and for the appraisal fees of John S. Miller.


(2). Robert G. Pogel

Claimant also seeks to recover the fee paid to its appraiser, Robert G. Pogel, in the amount of $10,228. This court rejected Mr. Pogel's analysis to the extent that he relied on the cost approach in addition to the income capitalization approach. (Coldiron, Ct Cl, p 9). The court finds that the use of a second appraiser by claimant produced duplicative efforts. As such, the court finds that a one-half reduction of Mr. Pogel's requested fee of $10,228 is appropriate to reflect the rejection of the cost approach analysis and duplicative efforts of claimant's other appraiser. Accordingly, the court finds that claimant is entitled to recover $5,114 as and for the appraisal fees of Robert G. Pogel.

  1. Surveyor Eric Gabrielson
Next, claimant seeks to recover the fee paid to Eric Gabrielson for his surveyor's fee of $2,050. The court finds that claimant's expense relating to the surveyor's analysis and trial testimony was incurred to achieve just and adequate compensation and is fully compensable under EDPL 701. The court, therefore, awards claimant $2,050 for Eric Gabrielson's surveyor fees.

  1. Attorney's Fees
The motion papers establish to the court's satisfaction that the terms of the retainer agreement between claimant and counsel provided for attorney fees of 33 1/3 % of the amount recovered in excess of the State's initial offer of $645,000. A contingency fee arrangement based upon the final amount awarded, including interest, is appropriate as a matter of law. (Matter of Hoffman v Town of Malta, 189 AD2d 968). The court finds the fee charged by claimant's attorney for prosecuting this claim both reasonable and incurred to achieve just and adequate compensation pursuant to EDPL 701. Thus, the court awards an additional allowance for attorney's fees of $103,067.49 [one-third of $309,202.47],[4] plus $768.78 in requested disbursements.


CONCLUSION
In sum, based on the foregoing, claimant is awarded the total sum of $114,916.90 for actual, reasonable and necessary expenses as follows:
Appraiser Miller: $ 3,916.63

Appraiser Pogel: $ 5,114.00

Surveyor: $ 2,050.00

Attorney's fees: $103,067.49

Disbursements
: $ 768.78
Total: $114,916.90


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



January 26, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:

  1. DECISION, Lebous, J., Claim No. 102518, filed May 5, 2003.
  2. MEMORANDUM AND ORDER, Supreme Court, Appellate Division, Third Judicial Department, decided and entered June 10, 2004.
  3. Notice of Motion No. M-69389, dated November 23, 2004, and filed November 26, 2004.
  4. Affirmation of Frederick J. DeFilippo, Esq., in support of motion, dated November 1, 2004, with attached exhibits.
  5. Affidavit of David S. Coldiron, in support of motion, sworn to November 1, 2004.
  6. Affidavit of Eric Gabrielson, in support of motion, sworn to November 12, 2004.
  7. Affidavit of Robert G. Pogel, in support of motion, sworn to November 4, 2004.
  8. Affidavit of John S. Miller, in support of motion, sworn to November 18, 2004.
  9. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated and filed December 8, 2004.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at

[2]The difference is 32.32% from the trial court's award and 32.27% after the adjustment upon appeal. The court's calculations are slightly different than the 32.28% cited by claimant. (Affirmation of Frederick J. De Filippo, Esq., ¶ 10).
[3](Northville Indus. Corp. v State of New York, 6 AD3d 514, affirming Northville Indus. Corp., September 17, 2002, Sise, P.J., Claim No. 97489, Motion No. M-64964, UID No. 2002-028-052 [$89,083/19.45% difference not substantial]; CMRC v State of New York, Ct Cl, July 7, 2004, Mignano, J., Claim No. 94967, Motion No. M-68412, UID No. 2004-029-407 [20.3% difference not substantial]; Matter of County of Tompkins, 298 AD2d 825, lv denied 100 NY2d 501 [$65,000/22.8% difference not substantial]; Karas v State of New York, 169 AD2d 816 [$75,718/41.5% difference found to be substantial]; Camperlino v State of New York, Ct Cl, June 8, 2004, Fitzpatrick, J., Claim No. 99592, Motion No. M-67976, UID No. 2004-018-308 [$27,274/32.6% difference found to be substantial]; Filmar Homes, Inc. v State of New York, Ct Cl, August 5, 1998, Patti, J.,Claim No. 93116, Motion Nos. M-57141 & M-57314 [$32,500/38.8% difference found to be substantial]).
[4]The amount paid by the State after appeal was $309,971.25. The amount paid, after deduction of $768.78 for disbursements, was $309,202.47. (Affirmation of Frederick J. De Filippo, Esq., ¶ 12).