Application pursuant to EDPL § 701 for attorney's fees and expenses was granted.
|Claimant(s):||CHARLES M. GERAGOSIAN and MICHAEL J. GERAGOSIAN|
|Claimant short name:||GERAGOSIAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Joshua J. Effron, Esquire|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Donald E. Shehigian, Esquire
Principal Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 13, 2009|
|See also (multicaptioned case)|
On August 27, 1999 defendant State of New York appropriated a 1.739-acre parcel of unimproved property in the City of Rensselaer, New York, pursuant to the Eminent Domain Procedure Law and Highway Law § 30. Following trial the claimants were awarded $180,856.00 for direct damages. The amount of the advance payment was $70,000.00. Claimants now move for an additional allowance for attorney fees, appraisal and engineering expenses, and disbursements pursuant to EDPL § 701.
According to claimants' counsel's affirmation submitted in support of the application, the amount recovered by claimants, including interest, above the State's advance payment offer was $146, 945.99.(1) Claimants therefore seek 33 1/3 % of this amount ($48,982.00) as reimbursement for attorney fees. Claimants also seek reimbursement for appraisal fees paid to Leonard B. Berdan in the amount of $2,450.00, engineering fees paid to Thomas C. Andress in the amount of $1,802.84 and disbursements in the amount of $119.35.
EDPL § 701 provides for the discretionary awarding of costs, disbursements and expenses to a condemnee whose property was substantially undervalued. Pursuant to the statute:
"In instances where 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, separately computed and stated, for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees, actually incurred by such condemnee."
The purpose of the statute "is to permit an additional, discretionary allowance to ameliorate expenses which might otherwise diminish an appropriation award to something less than just compensation" (Meyers v State of New York, 166 Misc 2d 586, 590 [Ct Cl 1995]; see also Matter of County of Tompkins, 298 AD2d 825, 826 , lv denied 100 NY2d 501 ). The trial court is vested with discretion "in order to limit both the incentive for frivolous litigation and the cost of acquiring land through eminent domain" (Hakes v State of New York, 81 NY2d 392, 397 ). To succeed on an application for an additional allowance two criteria must be met: 1) the award must be substantially in excess of the condemnor's proof, and 2) the expenses incurred must have been necessary to achieve just and adequate compensation (Hakes v State of New York, 81 NY2d at 397; Matter of Village of Johnson City [Waldo's Inc.], 277 AD2d 773 ).
Here, the first requirement is met. The advance payment made by the condemnor was $70,000. The amount awarded following trial was $180,856.00. Thus, the sum awarded was more than double the amount of the advance payment and was therefore sufficiently substantial to satisfy the first requirement set forth above(2) (see Matter of Village of Johnson City [Waldo's Inc.], 277 AD2d 773 ).
The Court also finds that the appraisal and engineering fees and disbursements incurred by the claimant were necessary to achieve just and adequate compensation (see EDPL § 701; First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034 , affd 81 NY2d 392 ; Matter of Village of Johnson City [Waldo's, Inc.], supra; Matter of Estate of Haynes v County of Monroe, 278 AD2d 823 , lv denied 96 NY2d 712 ; Carbone v State of New York, 13 Misc 3d 1246 [A] , 2006 NY Slip Op 52364 [U] ). The services of both the appraiser and the engineer were necessary to counter the testimony of defendant's experts and achieve just and adequate compensation. The Court finds the disbursements were reasonable and necessarily incurred and, accordingly, awards claimants $2,450.00 for the appraiser's fees, $1,802.84 for the engineer's fees, and $119.35 for disbursements.
In support of their application for attorney fees, claimants' counsel submits a bill for attorney services rendered in the sum of $48,982.00 and an affidavit from the claimant, Charles M. Geragosian, indicating that the bill was paid. Although no retainer agreement was submitted for the Court's consideration, claimants' counsel avers that the fee charged represents 33 1/3 % of the total amount recovered, including interest, in excess of the condemnor's advance payment offer. Contingent fee arrangements in cases such as this have been found to be "an acceptable factor to be considered by the courts in determining reasonable counsel fees" (Matter of Hoffman v Town of Malta, 189 AD2d 968, 969; see also 627 Smith St. Corp. v Bureau of Waste Disposal of the Dept. of Sanitation of the City of N.Y., 289 AD2d 472 , lv dismissed 98 NY2d 646 ; Carbone v State of New York, supra). The Court finds that the contingency fee arrangement in this case is both customary and fair and reasonable. Moreover, defense counsel indicates that claimants' counsel is "a highly skilled and very competent eminent domain attorney" (defense counsel's affirmation dated December 8, 2008, ¶ 6). Upon consideration of the difficulty of the issues presented, the level of skill required and the benefit to the claimants resulting from the attorney's skill and the results obtained, the Court finds the fee of $48,981.00 to be reasonable compensation for the work performed (see Carbone v State of New York, supra).
Accordingly, claimants are entitled to an additional allowance as follows:
Let judgment be entered accordingly.
February 13, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Defense counsel correctly asserts, however, that the actual amount on which the attorney's fee should be computed is $146,942.99, which represents the sum of the payments made above the State's advance payment. The difference amounts to $1.00 less in the proposed 33 1/3 attorney's fee.
2. Notwithstanding the statutory requirement that the award be "substantially in excess of the amount of the condemnor's proof", it has been held that the appropriate measure is the difference between the initial offer and the amount of the award (Matter of Village of Johnson City [Waldo's Inc.], supra).