Claimants move for an additional allowance for attorney's fees, as well as
appraisal and surveying fees pursuant to EDPL 701. The State of New York
(hereinafter "State") opposes the motion.
On July 18, 2000, pursuant to the EDPL and Highway Law § 30, the State
premises owned by claimants situate in the Town of Southport, County of Chemung,
State of New York. An abbreviated trial was held jointly with the claim of
Edward B. Farmer and Lori P. Farmer (Claim No. 103344) in the Binghamton
District on September 23, 2002.
Pursuant to EDPL 304, the State made an initial offer of $24,000. After trial,
this court awarded claimants damages for the taking in the total amount of
$39,000. (Farmer v State of New York
, Ct Cl, March 28, 2003, Lebous, J.,
Claim No. 103336). A judgment was entered on June 6, 2003 in favor of claimants
in the amount of $39,000. Thereafter, for reasons not pertinent here, claimants
filed post-trial motions including a motion to vacate said Decision and
The parties have since entered into
a stipulation agreeing to modify this court's prior Decision dated March 28,
2003 and filed April 21, 2003 by the entry of a Supplemental Judgment in the
additional amount of $15,500 in favor of claimants as a cost to cure.
(Farmer v State of New York
, Ct Cl, July 19, 2005, Lebous, J., Claim No.
103336, Motion No. M-70065). As such, claimants were ultimately awarded a total
amount of $54,500, consisting of the original sum of $39,000, as well as an
additional $15,500 as a cost to cure.
Claimants now seek an additional allowance pursuant to EDPL 701 for
appraiser's, surveyor's, and attorney's fees. The State does not strenuously
oppose the application with the exception of an objection to the original
request for attorney's fees. 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.
First, the court must determine whether the award was substantially more than
the initial offer. In determining whether the difference is substantial, the
court must look to the percentage difference, as well as the dollar amount.
Here, the State's initial offer was $24,000 and the court's award after trial
was $39,000. However, after post-trial motion practice, this trial court's
original award was modified upon stipulation to add an additional $15,500 as a
cost to cure for a total award of $54,500. Thus, the discrepancy between the
State's initial offer ($24,000) and the total award ($54,500 after modification)
is $30,500. The court finds the discrepancy of approximately 227% substantial
within the meaning of EDPL 701.
Next, the court considers whether the fees were incurred "to achieve just and
adequate compensation." (EDPL 701). Claimants seek to recoup the expenses
associated with appraiser Robert G. Pogel, as well as surveyor, Eric Gabrielson,
both of whom testified briefly at trial, as well as attorney's fees.
The motion papers establish to the court's satisfaction that the terms of the
retainer agreement between claimants and counsel provided for attorney's fees of
33 1/3 % of the amount recovered in excess of the State's initial offer of
$24,000. 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).
Claimants' original motion papers (submitted prior to the modification)
indicated that $5,413.75 had actually been paid in attorney's fees, but
requested a total of $12,881.00 as an additional fee due to the unusually large
amount of time spent on this case. The court rejects claimants' original
request for $12,881.00. After the modification upon stipulation, claimants'
attorney submitted a supplemental affirmation requesting the additional sum of
$5,167 in attorney's fees above the previously paid $5,413.75. The court finds
that the original amount of attorney's fees previously paid of $5,413.75 plus
the additional sum of $5,167, for a total legal fee of $10,580.75 was reasonable
and incurred to achieve just and adequate compensation pursuant to EDPL 701.
Thus, the court awards attorney's fees of $10,580.75. There are no requested
In sum, based on the foregoing, claimants are awarded the total sum of
$14,137.25 for actual, reasonable and necessary expenses as follows:
DECISION, Lebous, J., Claim No. 103336, filed April 21, 2003.
JUDGMENT, Claim No. 103336, entered June 6, 2003.
Notice of Motion No. M-68442, dated May 13, 2004, and filed May 17, 2004.
Affirmation of Frederick J. DeFilippo, Esq., in support of motion, dated April
28, 2004, with attached exhibits.
Affidavit of George E. Farmer, in support of motion, sworn to May 12,
Affidavit of Eric Gabrielson, in support of motion, sworn to May 11,
Affidavit of Robert G. Pogel, in support of motion, sworn to May 6, 2004.
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated July 16,
2004, and filed July 19, 2004.
Supplemental Affirmation of Frederick J. DeFilippo, Esq., in support of motion,
dated June 14, 2005, and filed June 16, 2005.
Affirmation of Joseph F. Romani, AAG, in reply to supplemental application,
dated July 1, 2005, and filed July 5, 2005.