New York State Court of Claims

New York State Court of Claims

CARBONE v. THE STATE OF NEW YORK, #2006-010-039, Claim No. 107364, Motion No. M-72328


Synopsis


Claimant’s application for an additional allowance pursuant to EDPL §701 is granted.

Case Information

UID:
2006-010-039
Claimant(s):
DOM CARBONE
Claimant short name:
CARBONE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107364
Motion number(s):
M-72328
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
KNUCKLES & KOMOSINSKI, P.C.By: Mark R. Knuckles, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 17, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-2 were read and considered by the Court on claimant’s application for an additional allowance pursuant to EDPL §701:
Notice of Motion, Claimant’s Affidavit, Attorney’s Supporting Affirmation and Exhibits....................................................................................................................1

Affirmation in Opposition........................................................................................2

Claimant seeks an additional allowance pursuant to EDPL §701 incurred in the litigation of his appropriation claim (Claim No. 107364). Specifically, claimant seeks the following: attorney’s fees in the amount of 33% of the difference between the Court’s award, with accrued interest, and the defendant’s advance payment; appraisal fees paid to Harry Eisenberg in the amount of $2,250.00 for an appraisal and an additional $4,850.00 to review and critique defendant’s appraisal and attend the trial; and engineer’s fees paid to Michael J. Calise in the amount of $10,625.00 for an engineer’s report and an additional $17,600.00 to review and critique defendant’s planner’s report and assist in the settlement discussions and to attend the trial.

EDPL §701 provides that a court “may in its discretion” award such fees when the “award is substantially in excess of the amount of the condemnor’s proof” and the expenses have been necessarily incurred by the condemnee “to achieve just and adequate compensation.” The statute assures that a condemnee receives a fair recovery by providing an opportunity for condemnees whose property has been substantially undervalued to recover the costs of litigation establishing the inadequacy of the condemnor’s offer (Hakes v State of New York, 81 NY2d 392, 397). There is, however, no “automatic right to recover additional costs”; rather the determination is left to the sound discretion of the Court in cases where both conditions have been met and the Court deems it appropriate to ameliorate the condemnee’s costs (General Crushed Stone Co. v State of New York, 93 NY2d 23, 28).

Prior to trial, claimant retained an engineer to help effectuate a settlement. Defendant, however, did not offer any amount in settlement until the Friday prior to the trial scheduled for that Monday. At that time, defendant offered $172,500.00. Consistent with the opinion of defendant’s experts, the Court determined that claimant was entitled to an award of $172,500.00 with appropriate interest. Claimant argues that, for purposes of this motion, the Court should consider that defendant offered no monies in settlement until three days before the trial and that therefore the Court should consider the difference between the amount awarded by the Court ($172,500.00) and the amount of the advance payment tendered to claimant by defendant ($98,000.00) (Claimant’s Attorney’s Affirmation, ¶¶ 4, 15). Based upon that premise, claimant argues that the Court’s award of $172,500.00 is 76% more than $98,000.00 and thus substantially in excess of the amount of defendant’s initial offer.

Defendant does not dispute that the difference between its proof and the Court’s award was “substantial” for the purpose of the Court’s consideration of an additional award pursuant to EDPL §701 (Defendant’s Affirmation at ¶7). Defendant does, however, dispute whether such disparity warrants an additional allowance for the fees associated with claimant’s experts as the Court’s determination was based exclusively on defendant’s expert proof and the Court expressly accorded the expert proof offered by claimant “little weight.” Indeed, the Court found the conclusions of claimant’s expert Harry Eisenberg to be “highly speculative” and the rendering of Michael J. Calise was found to be of “limited value” (Decision Filed-Stamped July 6, 2006). Defendant correctly notes that the Court found defendant’s experts to be “more persuasive than that which was presented by claimant” and the Court based its conclusions on the proof presented by defendant (see Wertheimer v State of New York, 231 AD2d 897 [court erred in awarding an additional allowance for appraisal fees where court had found them to be misguided]).

Accordingly, the Court finds that a “substantial part of claimant’s counsel and appraisal fees were expended in an effort to achieve an inflated value and propounding valuation theories that were totally rejected” by the Court and therefore “the claimed expenses were not necessarily incurred ‘to achieve just and adequate compensation’” (Matter of Vil. of Johnson City [Waldo’s, Inc.], 277 AD2d 773, 775; EDPL §701). Where the proof offered has had no effect on the final award, then it cannot be found to be necessary to achieve just and adequate compensation and this Court will therefore not award an additional allowance in that regard (see First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, affd 81 NY2d 392). The Court, however, is mindful of the necessity of expert opinion in proving an appropriation claim. The Court therefore finds that an additional allowance is warranted to reflect the necessity of retaining an expert; however the Court has discounted its award to reflect that part of the expert opinion which was not accepted by the Court. Accordingly, the Court awards $3,250.00 for claimant’s appraiser, Harry Eisenberg, and $11,625.00 for claimant’s engineer Michael J. Calise.

Claimant has included a copy of the legal services agreement which provides for attorney fees in the amount of 33% of the difference between the Court’s award, with accrued interest, and the defendant’s advance payment. The Court notes that this is a customary fee arrangement and finds it to be reasonable given the amount of time and labor required, the difficulty of the issues presented, the level of skill required of this matter, the benefit resulting to claimant from the attorney’s skill and the results obtained (see Matter of Gelsomino v City of New Rochelle, 25 AD3d 554; Matter of Hoffman v Town of Malta, 189 AD2d 968; Matter of City of New York, 1 Misc 3d 911[A]). The Court has calculated the attorney’s fee, as set forth below, at $35, 070.37.

The date of taking was February 23, 2000 and personal service was made on March 17, 2000; therefore interest shall run from the date of taking through September 17, 2000 (six months from the date of personal service). The interest is then suspended from September 17, 2000 until February 20, 2003, the date the claim was filed. Interest next runs from February 20, 2003, the date of filing, until June 26, 2006, the date of the Decision, and from June 26, 2006 to August 21, 2006, the date of judgment. Thereafter, interest runs from the date of judgment, August 21, 2006, until the date of payment, which this Court estimates, based upon other similar cases and practice, to be by December 21, 2006. The interest has been calculated at 9.00% per annum. The difference between the advance payment ($98,000.00) and the final award ($172,500.00) is $74,500.00, plus interest, which amounts to a total award of $105,211.12. One third of that amount equals $35,070.37, which is the amount calculated for attorney’s fees according to the terms of the retainer agreement.

Therefore, claimant is entitled to an additional allowance as follows:
Attorney’s fees $35,070.37

Appraisal fees $ 3,250.00

Engineer’s fees $11,625.00
TOTAL $49,945.37


for the necessary and reasonable expenses incurred.

LET JUDGMENT BE ENTERED ACCORDINGLY.




November 17, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims