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 ; see also Matter of County of
Tompkins, 298 AD2d 825 , 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 (Id. at 397; Matter of Village of Johnson City
[Waldo’s, Inc.], 277 AD2d 773, 774 ). 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 ).
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 , affd 81
NY2d 392 ; Matter of New York City Tr. Auth. [Superior Reed &
Rattan Furniture Co.], 160 AD2d 705 ). 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
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 ; 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 ). 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
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
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.