New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK , #2007-028-549, Claim No. 112101, Motion No. M-72855


Claim to recover attorney fees and other costs associated with pursuing an appropriation action when his agreement to settle that action also conclusively resolved any application he could have made pursuant to EDPL § 701.

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:
Defendant’s attorney:
BY: J. Gardner Ryan, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of J. Gardner Ryan, AAG, with annexed Exhibits; and

2. Letter in Opposition of George A. Johnson, Jr.

Filed papers: Claim; Answer

This Claim arose in connection with an earlier action, Claim No. 103065, which was an appropriation action. In 2000, the Department of Transportation acquired portions of a parcel of real property owned jointly by Claimant and Elsa Stossel, as well as portions of the adjoining parcels owned by a Virginia M. Tracy, to create a bicycle path in the Town of Carmel, Putnam County. The three landowners, acting as a “partnership,” thereafter commenced Claim No. 103065, seeking the sum of $5,000,000 for direct and consequential damages to their property (Ryan Affirmation, Exhibit 1). Defendant moved to convert that claim into an action on behalf of the individual property owners, asserting that the purported partnership had no legal or equitable interest in the property in question. That motion was granted to the extent that the three individuals were substituted as Claimants, and the Second Department recognized that because the three individuals had joint control over the several parcels, they could be considered unified for valuation purposes, as long as unity of use was established also (Johnson v State of New York, 10 AD3d 596 [2d Dept 2004]).

Prior to trial, Claim No. 103065 was settled, and in April 2005, the individual owners (Claimant, Elsa Stossel and Virginia Tracy) executed Agreements of Adjustment, as required by EDPL § 304 (Ryan Affirmation, Exhibit 2). In effecting the settlement, Claimant agreed that the compensation received, $85,800.00, was for the total value of the property appropriated and all legal damages caused by the appropriation. The agreement also provided that the settlement proceeds represented “full and complete settlement for two of three named claimants of Claim #103065[1] and that:
The amount agreed upon herein as compensation shall be binding and conclusive on the parties in any action or proceedings with relation to the aforesaid appropriation as representing the total value of the property so appropriated, together with all legal damages caused by or consequent upon such appropriation as aforesaid.
In the instant action, Claim No. 112101, Claimant, who designates himself as “a citizen of the state of New York and of the United States of America, Et Al, as a class,” seeks compensation for expenses he incurred in hiring attorneys to prosecute the earlier claim. He asserts that settlements, where the amount is substantially higher than the initial offer made by the State and which reached after a lengthy delay “on the ‘court house steps’ ” (i.e., immediately before trial) should not be approved unless there was full and complete compensation to the property owner for all attorney fees and related litigation costs (Claim, p 2). Claimant does not set forth the specific amount of compensation that he seeks to compensate him for the amounts he paid out, he does state that Defendant would be liable for the sum of $1,500,000,000 to reimburse all citizens who have been forced to pay attorney fees and related costs in an effort to obtain just compensation for their property (id. p 3).[2]

Defendant has moved to dismiss this claim on the grounds of res judicata, contending that the Agreement of Adjustment resolved, conclusively, all actions that had been or could be brought in connection with the appropriation of Claimant’s property. There is certainly merit to Claimant’s contention that the amounts a property owner spends to obtain just compensation for the appropriation of his property are amounts that should also be repaid in those instances where the final determined value of the property is significantly greater than the initial amount offered (i.e., where it was the Defendant’s low offer, not the property owner’s unrealistic expectations, that brought about the lawsuit). The Legislature recognized this concern and provided a remedy in EDPL § 701, which provides for an “additional allowance” when such is necessary to achieve adequate and just compensation for property that has been taken by eminent domain. This statute grants the courts discretion to make a separate award to property owners for the actual and necessary costs including attorney, appraiser and engineer fees that they actually expended in obtaining a just compensation for their land. Application for an additional allowance, pursuant to EDPL § 701, is an “action or proceedings with relation to the aforesaid appropriation” and thus was one of the causes of action on which the settlement reached was a “conclusive” determination (see also Matter of Hunter, 4 NY3d 260 [2005], quoting O’Brien v City of Syracuse, 54 NY2d 353 [1981] [“once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy”]).

When Claimant signed the Agreement of Adjustment by which Claim No. 103065 was conclusively resolved, he also agreed to give up any right he had to seek an additional allowance to recover the amounts he expended on attorney fees and other related costs. Defendant’s motion is GRANTED, and Claim No. 112101 is dismissed.

May 8, 2007
Albany, New York

Judge of the Court of Claims

[1]. Claimant Virginia M. Tracy executed a separate companion agreement.
[2]. Since Claimant did not properly commence this action as a class action (see CPLR, Article 9), there is a question as to whether this statement would fulfill the requirement that all Claims include a “total sum claimed” (Court of Claims Act § 11[b]; Kolnacki v State of New York, 8 NY3d 277, [2007]).