New York State Court of Claims

New York State Court of Claims

FARMER v. THE STATE OF NEW YORK, #2005-019-551, Claim No. 103336, Motion No. M-68442


Synopsis


Claimants' 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:
2005-019-551
Claimant(s):
GEORGE E. FARMER and JOAN A. FARMER
Claimant short name:
FARMER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103336
Motion number(s):
M-68442
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DE FILIPPO & PROUDFOOTBY: Stephen M. Proudfoot, Esq., and 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:
July 20, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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 appropriated

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.[1]


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 Judgment.[2] 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.

  1. Real Estate Appraiser
Claimants seek to recover the fee paid to their appraiser, Robert G. Pogel, in the amount of $3,044.[3] It is clear that the use of expert appraisal proof was necessary to achieve just and adequate compensation. The court finds that claimants are entitled to recover $3,044 as and for the appraisal fees of Robert G. Pogel.

  1. Surveyor Eric Gabrielson
Next, claimants seek to recover the surveyor's fee of $512.50 paid to Eric Gabrielson.[4] The court finds that claimants' expense relating to the surveyor's analysis was necessary to achieve just and adequate compensation and is fully compensable under EDPL 701. The court, therefore, awards claimants $512.50 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 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 disbursements.


In sum, based on the foregoing, claimants are awarded the total sum of $14,137.25 for actual, reasonable and necessary expenses as follows:
Appraiser Pogel: $ 3,044.00

Surveyor Gabrielson: $ 512.50

Attorney's fees: $ 10,580.75

Total: $ 14,137.25

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


July 20, 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. 103336, filed April 21, 2003.
  2. JUDGMENT, Claim No. 103336, entered June 6, 2003.
  3. Notice of Motion No. M-68442, dated May 13, 2004, and filed May 17, 2004.
  4. Affirmation of Frederick J. DeFilippo, Esq., in support of motion, dated April 28, 2004, with attached exhibits.
  5. Affidavit of George E. Farmer, in support of motion, sworn to May 12, 2004.
  6. Affidavit of Eric Gabrielson, in support of motion, sworn to May 11, 2004.
  7. Affidavit of Robert G. Pogel, in support of motion, sworn to May 6, 2004.
  8. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated July 16, 2004, and filed July 19, 2004.
  9. Supplemental Affirmation of Frederick J. DeFilippo, Esq., in support of motion, dated June 14, 2005, and filed June 16, 2005.
  10. Affirmation of Joseph F. Romani, AAG, in reply to supplemental application, dated July 1, 2005, and filed July 5, 2005.


[1]After trial there was considerable motion practice and negotiations between the parties which need not be reviewed here, but during which time, this motion was adjourned without date on consent before finally being placed back on the court's calendar after resolution of related outstanding issues.
[2]Claimants represent that said motion will be withdrawn upon completion of all outstanding matters relating to this claim.
[3]Mr. Pogel's total bill of $12,425 covered his services on both this claim, as well as the claim of Edward B. Farmer and Lori P. Farmer (Claim No. 103344). Mr. Pogel apportions his bill as 25% (rounded) to this claim. The State does not dispute the apportionment and, as such, the court accepts the apportionment of Mr. Pogel's total bill of 25% (rounded) to this claim and 75% (rounded) to the claim of Edward B. Farmer and Lori P. Farmer.
[4]Mr. Gabrielson's total bill of $2,050 covered his services on both this claim, as well as the claim of Edward B. Farmer and Lori P. Farmer (Claim No. 103344). Mr. Gabrielson apportions his bill as 25% to this claim. The State does not dispute the apportionment and, as such, the court accepts the apportionment of Mr. Gabrielson's total bill of 25% to this claim and 75% to the claim of Edward B. Farmer and Lori P. Farmer.