New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2009-013-003, Claim No. 105867, Motion No. M-75302


Pursuant to EDPL 701, Claimants are awarded an additional allowance to ameliorate the necessary and reasonable expenses incurred to achieve fair and just compensation.

Case Information

JAMES P. ALLEN and BRENDA SCARLETT ALLEN, Individually and as Co-Trustees of the JBA Trust
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:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 22, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


On September 17, 2008, the following papers were read on motion by Claimants for an additional allowance pursuant to EDPL 701:

Notice of Motion and Affirmation, Affidavits and Exhibits Annexed

Opposing Affirmation

Filed Papers: Claim; Trial Decision

Upon the foregoing papers, and after hearing Christopher J. Enos, Esq. for the Claimants, and Reynolds E. Hahn, Esq., Assistant Attorney General, for the Defendant, this motion is granted in part and denied in part.

In a trial decision dated September 20, 2007, I awarded Claimants the sum of $102,000.00 for all damages, direct and consequential, with appropriate interest thereon, with respect to this claim which arose out of an acquisition by the State of New York on April 16, 1999, necessitated by the failure of Blossom Road in the Town of Penfield in February 1998. As a consequence of the road failure and danger to the public’s safety, the Defendant had entered upon Claimants’ property to restore and stabilize the road prior to the filing of the taking maps. Subsequent to the repair and restoration of the road, Defendant acquired in fee that portion of Claimants’ property needed to complete the project, pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law of the State of New York.

Claimants seek an additional allowance pursuant to EDPL 701, which provides in relevant part that:

[W]here the 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, the court... may in its discretion, award to the condemnee an additional amount... for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees actually incurred by such condemnee.

As succinctly observed by Judge Terry Jane Ruderman in Carbone v State of New York (13 Misc 3d 1246[A], 2006 NY Slip Op 52364[U][2006]):

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).

There is no dispute that the award of $102,000.00 is substantially (some 573%) greater than the advance payment of $17,800.00 proffered to Claimants, thus satisfying the first statutory requirement. Claimants contend that they satisfy the second statutory requirement, to wit, that they incurred necessary expenses to achieve just and adequate compensation. They have provided their own affidavit, as well as the requisite affidavits and supporting documents of their attorney, appraiser and engineer. Specifically, they seek attorney’s fees of $42,535.33 and disbursements of $533.45; appraiser’s fees of $3,500.00 (for the appraisal) and $2,900.00 (for trial preparation and testimony); and the consulting engineer’s fees of $8,701.11 (prior to trial) and $3,009.33 (for trial preparation and testimony), for a total of $61,179.22.
Defendant questions the necessity of certain expenses, particularly the engineering expenses, as well as a portion of the appraisal costs. Claimants have appended as Exhibit B a copy of the legal services agreement which provides for attorney fees in the amount of 33.3% of the difference between the Court’s award, with accrued interest, and the Defendant’s advance payment. The calculation of the fee is based upon the amount of the judgment, with accrued interest, less the advance payment (see Court of Claims Act §20 [9]). This is a customary fee arrangement and is reasonable (Carbone v State of New York (13 Misc 3d 1246[A], 2006 NY Slip Op 52364[U][2006], supra). No argument is raised with respect to the attorney’s fees, costs or disbursements, and those are awarded in their entirety ($42,535.33 and $533.45, respectively). I would be remiss in failing to acknowledge, at this juncture, the perseverance, diligence and forceful representation by Claimants’ counsel.

With respect to the fees and expenses incurred by Claimants’ engineer, Robert L. Keiffer, Defendant notes that neither his name nor his testimony is recited in the trial decision. Moreover, as to Mr. Keiffer’s pretrial expenses of $8,701.11, it is clear and undisputed that such were incurred prior to the taking (see Paragraph 3-A of Claimants’ counsel’s affirmation). Notably, Mr. Keiffer’s affidavit is vague with respect to the dates of service, although he described the fees as being earned in “efforts to present to the NYSDOT mitigation of impact of proposed DOT ‘solutions’ to the road failure....” He observed that none of his design alternatives were adopted, or presumably even considered by DOT. The date of taking and filing of the maps was April 16, 1999, with service upon Claimants effectuated on July 28, 1999. Since his services for the sought-after $8,701.11 were all pre-taking, the dates of the invoices on September 6, 2002 and December 28, 2002, contained in Mr. Keiffer’s Statement of Account, are somewhat disingenuous. It might well be argued that those services and fees were incurred because of the failure of Blossom Road, not as part of Claimants’ quest to obtain just compensation for the taking.

As to the expenses incurred related to Mr. Keiffer’s trial appearance ($3,009.33), his testimony was not utilized by the Court in ascertaining the award, and, for that reason, it was not referenced in the trial decision. "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..." (Carbone v State of New York (13 Misc 3d 1246[A], 2006 NY Slip Op 52364[U][2006], supra).

Accordingly, I decline to make any award for any of the expenses incurred by Claimants for the services and fees of Mr. Keiffer.

It is clear that the use of expert appraisal proof was necessary to achieve just and adequate compensation. While Defendant suggests that a portion of the fees and expenses incurred for the appraisal and testimony of Claimants’ appraiser, Robert G. Pogel, regarding the estimated value of the subject property after the taking was not relevant to the trial decision, it was reviewed and considered in the rendering of my decision, and as such, I find that Claimants are entitled to recover the full amount of $6,400.00 for the appraisal and trial-related fees of Mr. Pogel.

Therefore, in the exercise of my discretion, Claimants are entitled to an additional allowance to ameliorate the necessary and reasonable expenses incurred to achieve fair and just compensation (General Crushed Stone Co. v State of New York, 93 NY2d 23, 28) as follows:

Attorney’s Fees $42, 535.33

Disbursements 533.45

Appraisal fees 6,400.00

  1. $49,468.78

Accordingly, upon the above papers, Claimants’ motion is granted in part and denied in part.


January 22, 2009
Rochester, New York

Judge of the Court of Claims