New York State Court of Claims

New York State Court of Claims

OVERSEAS AMERICAN v. THE STATE OF NEW YORK, #2005-028-520, Claim No. 101771, Motion No. M-69161


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
SIEGEL FENCHEL & PEDDY, P.C.BY: Saul R. Fenchel, Esq.
Defendant's attorney:
BY: J. Gardner Ryan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 7, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The Court, in reaching its decision, has read and considered the following papers:

(1) Notice of Motion dated September 27, 2004 and filed on September 29, 2004;

(2) Affirmation of Saul R. Fenchel, Esq., dated September 27, 2004 and filed on September 29, 2004 together with Exhibits "A-H" (Fenchel Affirmation);

(3) Affirmation of J. Gardner Ryan, Assistant Attorney General dated November 12, 2004 and filed on November 15, 2004 (Ryan Affirmation);

(4) Reply Affirmation of Saul R. Fenchel, Esq., dated November 16, 2004 and filed on November 17, 2004, together with Exhibit R-1 (Reply Affirmation);

(5) Claimant's Memorandum of Law dated September 27, 2004, received September 29, 2004;

(6) Decision of Overseas American Bayshore Association, L.P. v State of New York (Ct Cl unreported decision filed June 24, 2004, Sise, J., Claimant's Exhibit C).

Pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law, the State of New York (hereinafter referred to as the "State") appropriated a portion of the Claimant's property, as well as a temporary easement affecting a portion of the Claimant's property, which was located on the northwest corner of the intersection of Montauk Highway (State Route 27A)and Saxon Avenue in the Town of Islip, Suffolk County. The Claimant brings the present application pursuant to EDPL 701 seeking an additional award for its attorney's fees and disbursements, and its engineer's and appraiser's fees (Fenchel Affirmation, pp 2). The application for attorney's fees is based upon a standard one-third contingency fee retainer agreement, whereby the Claimant agreed to pay his attorney 33 1/3% of all proceeds exceeding the advance payment, and 33 1/3% of the interest attributable to those proceeds (Fenchel Affirmation, paragraphs 13 and 14, pp 6-7).
EDPL 701 permits a Claimant to apply for costs arising from the prosecution of an appropriation action, said sum includes, inter alia, reasonable attorney's fees, engineer's fees and appraiser's fees, where the 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).

1. Whether the award was substantially more than the initial offer.

Here the State's initial offer was $80,100.00 (Fenchel Affirmation, Exhibit A), and the Court's award after Trial was $1,004,273.29 excluding interest (Fenchel Affirmation, Exhibit C

p 13). The Court finds that the discrepancy of approximately 1100% is "substantial" within the meaning of EDPL 701. The first prong of the statutory test is therefore satisfied.

2. Whether the expenses were incurred to achieve just and adequate compensation.

Whether the expenses were incurred in order to achieve just and adequate compensation entails a more careful examination of what transpired at the Trial.

The Court found the direct damage attributable to the taking to be $91,271.25 or $14.25 per square foot for 6,405 square feet (Fenchel Affirmation, Exhibit C p 8). The Claimant's appraisal valued the square footage at $15.00 per square foot; the State's value was $13.00 per square foot.

In valuing the temporary easement, the Court rejected the Claimant's argument that it was entitled to severance or consequential damages flowing from the temporary easement,[1] and found the damages to be $1,332.26 per month, or $45,563.29 (Fenchel Affirmation, Exhibit C, pp 12-13).

The Court agreed with the Claimant on the question of consequential damages resulting from the lost parking spaces and found a total of $863,580 in consequential damages (Fenchel Affirmation, Exhibit C, pp 9-11 and 13).

In the face of Claimant's and Defendant's appraisers' failure to present testimony on the issue of site improvement, the Court valued these improvements to be $3,859.00 (Fenchel Affirmation, Exhibit C, pp 13).
Attorney's Fees

In support of its request for attorney's fees, the Claimant has submitted a copy of the Retainer Agreement with its attorneys which provides for a fee equal to 33 1/3% of all amounts paid over and above the advance payment (Fenchel Affirmation, Exhibit E). The submission of such an agreement is an acceptable factor to be considered by the Court in determining reasonable counsel fees (see Matter of New York City Transit Authority, 150 Misc 2d 917, 921). Similarly, these fees shall be calculated by adding to the amount of the award, interest, which had accrued upon that award (see Smyles v State of New York, Ct Cl unreported decision and order filed July 3, 2003, Sise, J., Claim No. 91871, UID #2003-028-554; Ventre v State of New York, Ct Cl unreported decision and order filed December 21, 2000, Midey, J., Claim No. 88013).

Accordingly, the Court made the following calculations:[2]
Award plus interest to August 11, 2004 $1,485,583.82
Advance payment (including interest) $ 94,456.69


Attorney's fees @ 33 1/3% $463,662.68

Engineering fee:
Preparation of report $4,200.00
Testimony 1 day @ $1000 $1,000.00
Out of Pocket Expenses $70.30

In reaching this figure, the Court has reviewed the agreement, as well as supporting documentation, and finds that charges for trial preparation and other preparation time have not been substantiated and, therefore, has not made an award for them.

Appraiser's Fee
Appraisal Report $6,500.00
Court Testimony $1,250.00
Preparation time (12.25 hrs. @ $175) $2,143.75


The Court, in its discretion, has reduced the amount of time offered by Claimant's appraiser as pre-trial preparation by one half finding the submission lacks sufficient specificity for the Court to award the whole sum.

Costs and Disbursements
Transcript Fee $1,271.50


Based upon the foregoing, the Court finds the reasonable and necessary expenses that the Claimant has incurred would be $480,098.23. Without the additional advance, the net proceeds of the award, plus interest would have been substantially less than what was found by the Court. Claimant is awarded an additional allowance for those necessary costs and expenses as hereinabove set forth.

Accordingly, the Motion is granted to the extent indicated. The Clerk shall enter an additional judgment in favor of the Claimant in the amount of $480,098.23, without interest (see CPLR 5001[a]; Long Island Pine Barrens Water Corp. v State of New York, 144 Misc 2d 665, 670).

March 7, 2005
Albany, New York

Judge of the Court of Claims

[1] The Court had previously rejected the computation of claimant's engineer on the issue of setback (Fenchel Affirmation, Exhibit C, pp 9-10).
[2] The Court rejects the State's argument that the fees and expenses were not attributable to the resolution of a bona fide dispute. The issue of consequential damages was clearly disputed.