New York State Court of Claims

New York State Court of Claims

ROSKOPF v. STATE OF NEW YORK, #2009-037-029, Claim No. 111137, Motion No. M-76861


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:
Wolfgang and WeinmannBy: Michael G. Wolfgang, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. LonerganAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Claimant’s motion for an additional allowance pursuant to Eminent Domain Procedure Law (EDPL) § 701:
  1. Notice of Motion filed June 24, 2009 with supporting affidavit of Michael G.
Wolfgang, Esq. sworn to June 15, 2009; “affirmation” of Robert B. Roskopf dated June 3, 2009; affidavit of Gregory C. Klauk sworn to June 2, 2009; and affirmation of Mark R. McNamara, Esq. dated May 29, 2009;

  1. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn to
June 30, 2009, with annexed exhibits A-C;

  1. Reply affidavit of Michael G. Wolfgang, Esq. sworn to July 6, 2009, with annexed
exhibits A-C, including amended affidavit of Michael G. Wolfgang, Esq. sworn to July 6, 2009 (Exhibit A).

Filed papers: Decision of Moriarty, J., filed May 4, 2009; Amended Decision of Moriarty, J., filed June 23, 2009; Judgment entered September 10, 2009.

On July 24, 2002 Defendant State of New York appropriated real property owned by Claimant and located in the City of Lockport, Niagara County, New York, pursuant to Highway Law § 30 and the Eminent Domain Procedure Law (EDPL). Following trial Claimant was awarded damages totaling $26,000.00 plus statutory interest. The amount of the initial offer by Defendant at the time of taking was $5,500.00. Claimant accepted the offer as an advance payment only and sought counsel to commence this action.

Claimant now seeks an additional allowance pursuant to EDPL §701 for actual and necessary costs, disbursements and expenses incurred in the litigation of this claim. Specifically, Claimant seeks the following: attorney’s fees in the amount of 33 1/3 % of the difference between the Court’s award, with accrued interest, and Defendant’s advanced payment; appraisal fees paid to Klauk, Lloyd & Wilhelm, Inc. in the amount of $6,937.50; and disbursements in the amount of $50.00.

EDPL § 701 provides that a court “may in its discretion” award such fees when the “award is substantially in excess of the amount of the condemnor’s proof” and the expenses have been necessarily incurred by the condemnee “to achieve just and adequate compensation.” 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 [1995]; see also Matter of County of Tompkins, 298 AD2d 825 [2002], lv denied 100 NY2d 501 [2003]). 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 [1993]).
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 (Id. at 397; Matter of Village of Johnson City [Waldo’s, Inc.], 277 AD2d 773, 774 [2000]). 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 [1999]).

Here the Court first examines whether the award was substantially more than the condemnor’s proof. Pursuant to EDPL § 701, the term “condemnor’s proof” refers to the State’s initial offer and, accordingly, the Court makes its finding by comparing the initial offer made by the State with the award granted to Claimant (First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034 [1992], affd 81 NY2d 392 [1993]; Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705 [1990]). In this Claim, the condemnor’s proof was expressed by the State in the submission of an advance payment to Claimant in the amount of $5,500.00. After trial, this Court awarded Claimant $26,000.00 for the Claim which is 472% greater than the condemnor’s offer. Subsequently, a judgment, including accrued interest, was entered in the amount of $41,179.22 which is 749% greater than the original offer. In examining the dollar amounts, as well as the percentage difference between the figures, the Court finds that the difference is sufficiently substantial within the meaning of the statute to satisfy the first requirement set forth above (see Matter of Village of Johnson City [Waldo’s, Inc.], supra at 774-775).

In determining the second factor, the Court will examine whether an additional allowance for legal and appraisal fees is necessary in order to provide Claimant with just and adequate compensation. Claimant seeks an allowance of $6,937.50 for appraisal fees which includes $3,500.00 for the appraisal and $3,437.50 for the trial preparation and testimony of Gregory C. Klauk, Claimant’s appraiser. Defendant argues that any allowance for appraisal fees should be reduced because the Court rejected certain items of damage contained in the appraisal. However, in granting the award, the Court relied upon Mr. Klauk’s appraisal and testimony concerning the valuation of the parcel, both before and after the taking. Accordingly, the Court finds that Claimant’s expert appraisal proof was necessary to achieve just and adequate compensation and awards Claimant the sum of $6,937.50 as an allowance for appraisal fees pursuant to EDPL § 701 (see First Bank & Trust Co. of Corning v State of New York, supra; Matter of Village of Johnson City [Waldo’s, Inc.], supra; Carbone v State of New York, 13 Misc 3d 1246 [A] [2006]).

In support of his application for an allowance for attorney fees, Claimant has included a copy of the retainer agreement which provides for attorney fees in the amount of 33 1/3 % of the difference between the advance payment of $5,500.00 and the Court’s award, including accrued interest. The Court notes that contingency fee arrangements, based upon the final award plus interest, are a commonly used and accepted basis for determining attorney fees in EDPL § 701 applications (see Matter of Hoffman v Town of Malta, 189 AD2d 968 [1993]; Carbone v State of New York, supra), 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 [1995]). The Court finds that the contingency fee arrangement in this claim is both fair and reasonable. Upon consideration of the difficulty of the issues presented, the level of skill required and the benefit to Claimant resulting from his attorney’s skill and the result obtained, the Court finds the fee of $10,523.33[1] to be reasonable compensation for the work performed (see Matter of Hoffman v Town of Malta, supra; Carbone v State of New York, supra). In addition, considering the difference between Defendant’s initial offer of $5,500.00 and Claimant’s claim for damages in the amount of $250,000.00, the Court finds that it was necessary for Claimant to retain counsel in an attempt to achieve just compensation and, therefore, attorney’s fees were necessarily incurred expenses.

Defendant contends that at least some of the appraisal fees and attorney’s fees were incurred unnecessarily because the State increased the amount of the original offer during pre-trial settlement negotiations. However, the Court finds this contention to be speculative under the circumstances and not deserving of further consideration.

The Court now turns to Claimant’s request for reimbursement of the $50.00 Court of Claims filing fee. The Court’s Amended Decision specifically stated: “To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).” The Court has reviewed the Judgment that was entered herein and finds that the $50.00 filing fee was included. Therefore, the portion of the request seeking reimbursement of the Court filing fee is denied as having already been reimbursed to Claimant.

Based upon the foregoing, Claimant is awarded an additional allowance in the total sum of $17,460.83 for actual, reasonable and necessary expenses incurred for appraisal fees ($6,937.50) and legal fees ($10,523.33) to achieve just and adequate compensation for the property acquired by Defendant.


September 30, 2009
Buffalo, New York

Judge of the Court of Claims

[1].The Court has completed its own calculation of attorney’s fees pursuant to the retainer agreement and § 20 (9) of the Court of Claims Act and concludes that the amount of attorney’s fees requested by Claimant’s counsel is fair and reasonable.