New York State Court of Claims

New York State Court of Claims

PENETRADAR v. THE STATE OF NEW YORK, #2006-031-024, Claim No. 104084, Motion No. M-71649


Synopsis


Claimant’s request for additional compensation pursuant to EDPL § 701 is granted in part and denied in part.

Case Information

UID:
2006-031-024
Claimant(s):
PENETRADAR CORPORATION
Claimant short name:
PENETRADAR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104084
Motion number(s):
M-71649
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
MICHAEL G. WOLFGANG, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 23, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 8, were read on motion by Claimant for an order pursuant to Section 701 of the Eminent Domain Procedure Law awarding Claimant additional compensation:
1. Claimant’s Notice of Motion, filed May 1, 2006;
2. Affidavit of Michael G. Wolfgang, Esq., sworn to April 27, 2006;
3. Unsworn statement of Anthony Alongi (denominated Affirmation), dated April 21, 2006;
4. Affidavit of Anthony P. Girasole, sworn to April 21, 2006;
5. Affidavit of Philip F. Frandina, P.E., sworn to April 21, 2006;
6. Affirmation of Harold M. Halpern, Esq., dated April 24, 2006;
7. Affidavits In Opposition of William D. Lonergan (sworn to May 10, 2006) and Christopher George (sworn to May 10, 2006);
8. Reply Affidavit of Michael G. Wolfgang, Esq., sworn to May 11, 2006, with attached exhibit.

I heard oral argument on this motion on May 17, 2006 in Rochester, New York. Pursuant to a decision of this Court dated December 21, 2005, Claimant recovered $52,439.00 as fair and just compensation for land appropriated by Defendant. Claimant now makes an application pursuant to EDPL § 701 for the actual and necessary costs, disbursements and expenses incurred by Claimant, including attorney fees, appraisal fees and engineering fees, totaling $26,970.23.

EDPL § 701 provides for such additional allowances “to achieve just and adequate compenstion.” A court, in its discretion, may make such an allowance where “the award is ‘substantially in excess of the amount of the condemnor’s proof’” and where the court determines the allowance is “necessary ‘for the condemnee to achieve just and adequate compensation’” (Hakes v State of New York, 81 NY2d 392).

Here, there is no dispute that the award of $52,439.00 is substantially in excess of Defendant’s proof at trial of $23,800.00.[1] What is disputed is whether or not the allowance requested by Claimant, that is 100% of the engineer’s fees, appraisal costs and attorney’s fees, is appropriate. Defendant’s position is that any fee or cost associated with a part of Claimant’s case that had no bearing on the final award in this case may not be awarded because it was not necessary to achieve just and adequate compensation. Defendant’s position is supported by case law (Wertheimer v State of New York, 231 AD2d 897).

Claimant requests an additional allowance for his engineering services. The engineer’s report and testimony concerned various problems with the subject property’s parking lot and was offered to support a cost to cure argument as well as construction damage. After trial, I rejected both theories and declined to make any award based on those arguments. Thus, the $2,800.00 request for an allowance for engineering fees is denied.

Claimant also requests $6,500.00 for work provided by his appraiser. I did reject outright only two parts of the appraiser’s opinion. I declined to use his Cost Approach as well as his interpretation of the square footage of the subject building improvement. I grant Claimant an allowance of $5,000.00 for his appraisal fees inasmuch as I relied on the balance of the report to support the final award.

Finally, Claimant requests attorney’s fees in the amount of $17,620.23. I grant Claimant’s request for an allowance in this amount, given the fact Claimant’s attorney’s services were necessary to achieve just and adequate compensation. Further, given this attorney’s experience and expertise, the amount of this requested fee is reasonable.

In summary, Claimant is awarded $5,000.00 for his appraisal fee and $17,620.23 for his attorney’s fees. Claimant’s total award is $22,620.23.

LET JUDGMENT BE ENTERED ACCORDINGLY.

May 23, 2006
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[1].An initial offer of $7,000.00 was made by Defendant before the claim was filed. Claimant elected to take the $7,000.00 as an advance payment.