New York State Court of Claims

New York State Court of Claims

TWO SULLIVAN v. THE STATE OF NEW YORK, #2008-044-526, Claim No. 100512, Motion No. M-74359


Claimant granted additional allowance pursuant to EDPL § 701 in the amount of $252,962.09.

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:
THE EFFRON LAW FIRMBY: Joshua J. Effron, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 25, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


On December 11, 1997, pursuant to the Eminent Domain Procedure Law and Highway Law § 30, Defendant State of New York (the State) appropriated portions of two premises owned by claimant and located in the Village and Town of Liberty, Sullivan County, New York. Claimant now moves for an additional allowance for attorneys’ fees, appraisal and engineering expenses, and other actual costs and disbursements pursuant to EDPL 701. The State acknowledges that the Court’s award of $577,700 plus statutory interest after trial of the claim (see Two Sullivan Street, a New York Trust v State of New York, Ct Cl, Feb. 10, 2006, Lebous, J., Claim No. 100512 [UID # 2006-019-002]) was substantially in excess of defendant’s original offer of $206,000.[1] The State also concedes that expenses incurred for trial preparation, legal appraisal and other expenses were necessary to achieve just and adequate compensation.

EDPL 701 provides a means for a claimant to apply for reimbursement of costs incurred during the course of an appropriation action, including attorneys’ fees, engineering fees and appraisal expenses, when “[t]he order or award is substantially in excess of the amount of the condemnor’s proof and where deemed necessary by the court for the condemnee to achieve just and adequate compensation.” These allowances “provide a means of mitigating the financial damage wrought by the condemnor’s low, original offer” (General Crushed Stone Co. v State of New York, 93 NY2d 23, 27 [1999]). However, it should be noted that the allowances are not mandatory (see Hakes v State of New York, 81 NY2d 392 [1993]).

In determining whether allowances should be given, and how much, the Court must assess whether: 1) the award is substantially more than what was initially offered by the condemnor, and 2) the expenses were incurred to achieve just and adequate compensation (EDPL 701; Matter of Village of Johnson City [Waldo’s Inc.], 277 AD2d 773, 774 [2000]).

In considering whether the award is substantially more than what was initially offered, the Court examines both the percentage difference between the two figures, as well as the dollar amount. There is no question that this condition has been met in this instance, as the amount of the award ($577,700) was 280% higher than the initial offer ($206,000) (see Matter of Village of Johnson City [Waldo’s Inc.], supra). The Court finds this amount to be substantial within the meaning of EDPL 701.

In determining the second factor, the Court will examine each of the different types of costs separately. Claimant seeks an allowance of $12,500 for the appraisal, trial preparation and testimony of Kenneth V. Gardner, II, claimant’s appraiser. In its Decision granting the award, the Court relied on Mr. Gardner’s testimony and appraisal concerning the unity of use of the two parcels, which was contested by the State, thus allowing claimant to recover consequential damages as well as direct damages (Two Sullivan Street, a New York Trust v State of New York, supra). Moreover, the Court relied heavily on Gardner’s appraisal in its determination of the valuation of the combined parcels both before and after the taking. Accordingly, this Court finds that claimant’s expert appraisal proof was necessary to achieve just and adequate compensation, and awards claimant $12,500 as an allowance pursuant to EDPL 701 for claimant’s appraiser’s fees.

Claimant next seeks an allowance of $22,790.41 for engineering fees, both for preparation of a report and testimony at trial, by the engineering firm of Eustance and Horowitz, P.C. The engineering firm’s expertise was also necessary to achieve just and adequate compensation, as the Court explicitly relied upon the report in its findings. Claimant is awarded $22,790.41 for these fees.

Finally, claimant seeks an allowance of $217,671.68[2] for attorneys’ fees and disbursements (fees of $216,030.43, or one-third of the recovery, including interest, over the amount of the initial offer, plus $1,641.25 in disbursements). Claimant and its attorneys had a retainer agreement which provided for attorneys’ fees in the amount of one-third of the recovery over the initial offer. Contingency fee agreements “are an acceptable factor to be considered by the courts in determining reasonable counsel fees” in appropriation cases (Matter of Hoffman v Town of Malta, 189 AD2d 968, 969 [1993]), although the Court is not necessarily bound by the terms of such an agreement (see Matter of City of Yonkers v Celwyn Co., 221 AD2d 437, 438 [1995], lv denied 87 NY2d 812 [1996]). The Court finds that such a contingency fee arrangement is both customary and was fair and reasonable in this case, and necessarily incurred.

In conclusion, the motion is granted and claimant is awarded $12,500 for appraiser’s fees, $22,790.41 for engineering fees, and $217,671.68 for attorneys’ fees and disbursements,[3] for a total additional allowance of $252,962.09.


March 25, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on December 21, 2007; Affidavit of Linda Miller sworn to on December 3, 2007, and attached exhibits.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated January 11, 2008.

Filed papers: Claim filed on June 9, 1999; Answer filed on August 12, 1999; Decision and Order, Lebous, J., Claim No. 100512, filed on March 13, 2006.

[1]. The amount of the award, with interest, exceeded defendant's original offer by $648,091.29. The award of $577,700 (prior to the application of interest) is approximately 280% higher than the original offer.
[2]. While the bill for professional services annexed to the motion papers as Exhibit E shows a total amount due of $220,354.35, claimant’s affidavit requests only $217,671.68, and claimant’s attorney’s affirmation (made by Joshua J. Effron, Esq.) also supports the latter number. This discrepancy of $2,682.67 appears to be due to disbursements in the amount of $2,682.89 apparently billed by claimant’s other attorney, David D. Welch, Esq. The Court cannot account for the $0.22 disparity.
[3]. Because claimant does not request an allowance for the disbursements apparently billed by attorney Welch, the Court declines to make an allowance for that item.