New York State Court of Claims

New York State Court of Claims

POWERS v. THE STATE OF NEW YORK, #2009-040-024, Claim No. 109651, Motion No. M-75949


EDPL § 701 request for additional allowance granted in part and denied in part.

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:
Joshua J. Effron, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Audrey V. Bullen, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 3, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the motion by Claimants for an additional allowance pursuant to Eminent Domain Procedure Law (EDPL) § 701 is granted in part and denied in part.

Claimants seek the additional allowance pursuant to EDPL § 701 to achieve just and adequate compensation for the appropriation of their property. The property is located at the northwest corner of Church and River Streets in the Village of Hoosick Falls, Town of Hoosick, Rensselaer County, New York where Claimants own and operate an automobile service station. On March 27, 2003, Defendant appropriated, pursuant to Highway Law §§ 10 and 30 and the EDPL, approximately 492 square feet of the paved parking area at the extreme southeast corner of the property. By Decision dated May 13, 2008, the Court awarded Claimants the sum of $43,265, plus interest. Judgment was entered on August 13, 2008 in the amount of $64,654.52. Defendant issued a Certificate of No Appeal on September 23, 2008 (copy annexed to Affirmation of Joshua J. Effron dated November 26, 2008).

EDPL § 701 permits the Court, in its discretion, to award a condemnee additional monetary compensation beyond that included in the appropriation award, in instances where the Court deems it necessary, for actual and necessary costs, disbursements and expenses, including reasonable attorney fees, appraiser fees and engineer fees actually incurred. The statute assures that condemnees receive a fair recovery by providing those whose properties have been substantially undervalued an opportunity to recover the costs of litigation incurred through prosecution of their condemnation claims (see EDPL § 701; General Crushed Stone Co. v State of New York, 93 NY2d 23, 26-27 [1999]; Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705, 709 [2d Dept 1990]). In addition, the statute “vests the trial court 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]).

Pursuant to EDPL § 701, the court may exercise its discretion in determining to award additional fees only where: (1) a claimant can demonstrate that the award received after trial was substantially in excess of the amount of the pre-litigation offer (condemnor’s proof); and (2) the court deems the additional allowance necessary for the claimant to achieve just and adequate compensation (Hakes v State of New York, 81 NY2d 392, supra at 397; Thomas v State of New York, 179 AD2d 945, 946 [3d Dept 1992]).

Thus, the Court first examines whether the post-judgment award received by Claimants was substantially in excess of 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 Claimants (First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034 [4th Dept 1992], affd 81 NY2d 392 [1993]; Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705, supra at 709). In the instant case, the condemnor’s proof was expressed by the State in the submission of an advance payment to Claimants in the amount of $11,000 (see New York State Department of Transportation’s Offer of Settlement attached to Affidavit of Edward J. Powers dated November 20, 2008). After trial, this Court awarded Claimants $43,265 for the Claim. Thus, the final award was 393 percent greater than the condemnor’s offer[0]. In examining the dollar amount, as well as the percentage difference between the two figures, there is no question in the Court’s mind that Claimants have met this condition (see Matter of Village of Johnson City [Waldo’s Inc.], 277 AD2d 773, 774-775 [3d Dept 2000]).

The second inquiry is whether an additional allowance for legal and appraisal fees and disbursements is necessary in order to provide Claimants with just and adequate compensation. Claimants seek $16,297 for attorneys’ fees, $7,187.50 for appraisal fees, and the Court filing fee of $50, for a total additional judgment of $23,534.50.

Claimants and their counsel agreed to a contingency fee of one-third of any amount awarded, including interest, in excess of the original offer. The actual retainer agreement was not provided to the Court. Contingency fee arrangements, based upon the final award plus interest, are a commonly used and accepted basis for determining attorney fees on EDPL § 701 applications (see Matter of Hoffman v Town of Malta, 189 AD2d 968 [3d Dept 1993]; Camperlino v State of New York, Ct Cl, Claim No. 99592, Motion No. M-67976, June 8, 2004, Fitzpatrick, J. [UID No. 2004-018-308]). The Court finds that the contingency fee has been reasonably incurred, and an additional award for this fee is necessary in order to achieve just and adequate compensation.

Claimants also seek an allowance of $7,187.50 for the appraisal, trial preparation and testimony of William S. Hafner, their appraiser. In its Decision granting the award, the Court relied on Mr. Hafner’s testimony and appraisal concerning the valuation of the parcel, both before and after the taking (Powers v State of New York,Ct Cl, Claim No. 109651, May 13, 2008, McCarthy, J. [UID No. 2008-040-029]). Accordingly, the Court finds that Claimants’ expert appraisal proof was necessary to achieve just and adequate compensation, and awards Claimants $7,187.50 as an allowance pursuant to EDPL § 701 for Claimants’ appraiser’s fees.

The Court now turns to Claimants’ request for reimbursement of the $50 Court of Claims filing fee. In the Court’s Decision following trial, the Court specifically stated:
“It is directed that, to the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).” (Powers v State of New York, supra).
The Court has also reviewed the Judgment that was entered and finds that the $50 filing fee was included. Therefore, the portion of the request seeking reimbursement of the $50 Court filing fee is denied as already having been reimbursed to Claimants.

Based upon the foregoing, the Court grants Claimants’ motion for an additional allowance for legal and appraisal fees only in the amount of $23,484.50 to achieve just and adequate compensation for the property acquired by Defendant. This judgment shall be without interest, costs or disbursements.

The Clerk of the Court is directed to enter judgment accordingly.

March 3, 2009
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimants’ motion:

Papers numbered

Notice of Motion, Affirmation, Affidavit of

William S. Hafner, Affidavit of Edward J. Powers
and Exhibits attached 1

Affirmation in Opposition and Exhibit attached 2

Filed Papers: Claim, Judgment

[0]. With interest, the amount of the judgment was $64,645.52, which was 588 percent greater than the State’s offer.