New York State Court of Claims

New York State Court of Claims

M & R STONY BROOK v. STATE OF NEW YORK, #2006-014-509, Claim No. 99801, Motion No. M-70884


Synopsis


Determination of allowance pursuant to Eminent Domain Procedure Law section 701.

Case Information

UID:
2006-014-509
Claimant(s):
M & R STONY BROOK, INC.
Claimant short name:
M & R STONY BROOK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99801
Motion number(s):
M-70884
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant’s attorney:
Flower, Medalie & Markowitz,By Edward Flower
Defendant’s attorney:
Eliot Spitzer, Attorney General,By Assistant Attorney General J. Gardner Ryan
Third-party defendant’s attorney:

Signature date:
May 5, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the claimant’s application pursuant to Eminent Domain Procedure Law section 701: Notice of Motion, Affidavits and Exhibits annexed; Affirmation in opposition; Reply Affirmation and Exhibit annexed; affirmation of counsel for claimant and Exhibit annexed.

The claimant seeks $92,433, representing expenses incurred in the prosecution of this claim arising out of the defendant’s appropriation of real property.

The provisions of section 701 of the Eminent Domain Procedure Law authorize the payment of such expenses when two conditions are met. First, the Court’s award must substantially exceed the defendant’s proof, which has been held to mean the defendant’s initial offer for the property taken. Matter of New York City Transit Authority (Superior Reed & Rattan Furniture Co., Inc.), 160 AD2d 705. By decision filed September 7, 2005, the Court awarded the claimant $324,266, and determined that there had been a de facto taking by the defendant on July 8, 1997, a date nearly eighteen months prior to the title vesting date (January 5, 1999), for which the claimant was to be compensated in the form of interest on the award from the earlier date, which the Court calculates to be $43,533, so that the total award, for this purpose, is the sum of $324,266 plus $43,533, which the Court calculates to be $367,799, an amount which exceeds the defendant’s initial offer of $207,300 (as stated in paragraph 4 of the Assistant Attorney General’s Affirmation) by $160,499, which amounts to 178% of the initial offer. The defendant does not dispute that the award substantially exceeds the initial offer, and the Court finds that it does.

The provisions of section 701 further allow for an award, within the Court’s discretion, of expenses which were necessary 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. Here the claimant seeks (1) $78,333 for an attorney fee; and (2) $14,100 for fees paid to the appraiser who prepared the appraisal filed with the Court, and who testified at trial.

The attorney fee is based upon a retainer agreement (Exhibit A to Reply) which provides, inter alia, for a fee of 1/3 of the amount recovered in excess of $207,000. The amount of the appraiser’s fee is based upon documentation which demonstrates that the claimant paid the appraiser a total of $14,100 (see Affirmation of Elinor Brunswick, Paragraph 5), consisting of: $7,500 for preparation of the appraisal, $2,000 for preparation for Court appearance, $600 for conferences with counsel, and $2,000 per day for two days appearance at trial (Exhibit C).

In opposing this application, it does not appear to be the defendant’s position that none of these expenses were necessary to achieve just and adequate compensation. Rather, the defendant contends that the appraiser’s fees should not be allowed because the appraiser’s report and testimony did not affect the Court’s determination of value, and that the attorney fee should be “rejected outright or substantially reduced.”

While the Court’s determination of value was not based upon the report or testimony of the claimant’s appraiser, it was nonetheless necessary for the claimant to obtain an appraisal and have an appraiser testify at trial, in order to prosecute this claim. As such, the Court finds that the fees for the appraisal report ($7,500) and the appraiser’s appearance at trial for one day to testify ($2,000), both of which are reasonable, were necessary.

An attorney fee of 1/3 of the amount recovered in excess of the initial offer inclusive of interest awarded, as contained in the retainer agreement herein, is not uncommon in this type of case. See, e.g., Brown v State of New York, Court of Claims, Read, P.J., March 27, 2001, Claim No. 88093, #2001-001-017; Ventre v State of New York, Court of Claims, Midey, J., December 21, 2000, Claim No. 88013, #2000-009-447; Efco-Fa v State of New York, Court of Claims, Sise, J., August 29, 2002, Claim No. 93054, #2002-028-051; Matter of Hoffman v Town of Malta, 189 AD2d 968.

To the extent that the ultimate award can be ascribed to the attorney’s professional services in more than a general way, the Court’s determination of value, and of the de facto taking in particular, was based upon a record which was established by the highly competent efforts of counsel.

Calculation of the attorney fee begins with ascertaining the amount on which it is based. The first component of the amount recovered in excess of the initial offer inclusive of interest is (1) the amount by which the award ($324,266) exceeds the initial offer ($207,300 [as stated in paragraph 4 of the Assistant Attorney General’s Affirmation]) which the Court calculates to be $116,966. The remaining components consist of interest (at 9%), calculated as three distinct amounts: (2) interest on the amount of the award ($324,266) from July 8, 1997 (the date prior to title vesting as of which the Court found there had been a de facto taking) to January 5, 1999 (the date of title vesting), which the Court calculates to be $43,533; (3) interest on the amount by which the award exceeds the initial offer ($116,966) from January 5, 1999 (the date of title vesting) to August 26, 2005 (the date of decision), which the Court calculates to be $69,916; and (4) interest on the sum of (1) plus (2) plus (3) [which the Court calculates to be $230,415], from August 26, 2005 (the date of decision) to October 26, 2005 (the date of entry of judgment), which the Court calculates to be $3,456.

The amount by which the amount recovered exceeds the initial offer inclusive of interest, is the sum of the foregoing four amounts, which the Court calculates to be $233,871. The attorney fee is one-third of that amount, which the Court calculates to be $77,957. The claimant has submitted documentation indicating that an attorney fee in the amount of $70,984.69 has been paid.

In accordance with the foregoing, the claimant is entitled to an allowance in the total sum of $80,484.69, consisting of: (1) the attorney fee in the amount of $70,984.69, and (2) the appraiser fee in the amount of $9,500, which the Court finds were actual expenses which were necessary to achieve just and adequate compensation.

Let judgment be entered accordingly.


May 5, 2006
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims