New York State Court of Claims

New York State Court of Claims

LEE LA v. THE STATE OF NEW YORK, #2005-028-528, Claim No. 101705, Motion No. M-69564


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:
BY: Edward Flower, Esq.Donald Markowitz, Esq.
Defendant's attorney:
BY: Martin Rowley, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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

(1) Notice of Motion, dated January 7, 2005 and filed on January 10, 2005;

(2) Affidavit of Rosina Wimmer, sworn to January 3, 2005 and filed on January 10, 2005 (Wimmer Affidavit);

(3) Affidavit of Elinor Brunswick, sworn to January 3, 2005 and filed on January 10, 2005 (Brunswick Affidavit);

(4) Affirmation of Edward Flower, Esq., dated January 7, 2005 and filed on January 10,

2005, together with Exhibits A-H (Flower Affirmation);

(5) Affirmation of Martin Rowley, Assistant Attorney General, dated January 18, 2005 and filed on January 18, 2005 with attachment (Rowley Affirmation);

(6) Reply Affirmation of Donald Markowitz, Esq., dated January 24, 2005 and filed on January 25, 2005, together with Exhibits A-D (Markowitz Affirmation);

(7) Letter of Martin Rowley, Assistant Attorney General, dated January 25, 2005 and received January 26, 2005 with attachment (Rowley Letter).

Pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law, the State of New York (State) appropriated a portion of Claimant's property, as well as a temporary easement affecting a portion of the Claimant's property, which was located on the northeast corner of Montauk Highway (State Route 27A) and Brentwood Road, located in the Town of Islip, Suffolk County.

The Claimant has brought the present application pursuant to EDPL 701 seeking an additional award for its attorneys fees and disbursements, as well as its appraiser's fees (Flower Affirmation, pp 2-3). The application for attorney's fees is based upon the standard one-third contingency fee arrangement, whereby an owner agrees to pay his attorney 33 1/3% of all proceeds exceeding the advanced payment, and 33 1/3% of the interest attributable to those proceeds (Flower Affirmation, p 2).
Legal Analysis
EDPL 701 permits a Claimant to apply for costs arising from the prosecution of an appropriation action, said sum to include, inter alia, reasonable attorney's fees, engineer's fees and appraiser's fees, where the Court Order or award is substantially in excess of the amount of the Condemnor's proof of value and where deemed necessary by the Court for the Claimant to achieve just and adequate compensation.

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

Here the initial offer of the State was $56,800.00 (Flower Affirmation, p 2) and the Court's award after trial was $202,119.00, excluding interest (Exhibit A annexed to Flower Affirmation). The Court finds that the discrepancy of over 300% 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 careful examination of what transpired at the trial.

In reaching its direct damages of $23,488.00, the Court considered the before and after value of the property. Both parties were in agreement on the approximate value of the land taken – only the site improvement, which was taken, provided any diverse opinion.

On the issue of severance damages, the Court found them to be $176,512.00 and relied primarily upon Claimant's appraisal (Exhibit A annexed to the Flower Affirmation, p 10); the State's appraiser concluded that the loss of hedgerow had no effect on the value in the after situation.

The parties stipulated to the value of the temporary easement as being $2,119.00, or $130.00 per month for 16.3 months.
In its claim for attorney's fees, the Claimant submitted a copy of the Retainer Agreement with its attorneys, which provided for a fee of 33 1/3% of all amounts over and above the advanced payment (Markowitz Affirmation, Exhibit A). 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 filed July 15, 2003, Sise, J. Claim No. 91871; Ventre v State of New York, Ct Cl unreported decision filed December 21, 2000, Midey, J., Claim No. 88013).

The Court, after viewing all of the papers submitted on this issue, finds the attorney's fees to be reasonable and incurred "to achieve just and adequate compensation" (EDPL 701). The Court finds that the interest rate should be calculated at a rate of 9% per annum (see EFCO-FA Development Corp. v State of New York, Ct Cl unreported decision filed September 30, 2002, Sise, J. Claim No. 93054.[1]

The Court also finds that the fees of the appraiser were both reasonable and necessary in order to achieve just compensation (EDPL 701) and accordingly awards the fees requested (Flower Affirmation, p 6).
(A) Attorneys fees
Award plus interest to June 10, 2004 $274,051.00
Advance payment - 56,800.00


Attorney fees at 33 1/3% $ 72,417.00

(B) Appraisal fee:

Appraisal Report $ 10,000.00
Supplemental Appraisal Report $ 2,500.00
Court Testimony $ 2,000.00
Conference and Preparation Time $ 2,000.00

$ 16,500.00

Based upon the foregoing, the Court finds the reasonable and necessary expenses the Claimant incurred would be $88,917.00. Without the additional allowance, the net proceeds of the award, plus interest, would be substantially less than what was found to be just or adequate compensation. An award without these expenses would be grossly inadequate.

Accordingly, the Claimant's awarded an additional allowance for the necessary costs and expenses as previously stated.

Therefore, Claimant's Motion is granted. The Clerk of the Court shall enter an additional judgment in favor of the Claimant in the amount of $88,917.00.

April 5, 2005
Albany, New York

Judge of the Court of Claims

[1] The Court disagrees with the State on the rate of interest. The rationale for the decision (Meyers v State of New York, 166 Misc 2d 586) relied upon by the State, namely that there may be a disincentive to prosecute cases because interest may accrue has never been substantiated.