New York State Court of Claims

New York State Court of Claims

MANN v. THE STATE OF NEW YORK, #2009-044-516, Claim No. 109113, Motion No. M-75944


Claimant awarded additional allowance pursuant to EDPL 701.

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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 10, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


On March 7, 2003, defendant State of New York (defendant) appropriated real property owned by claimant and located in the Town of Mamakating, Sullivan County. Claimant now moves for an additional allowance of $88,428.69 for counsel fees and appraisal expenses pursuant to EDPL 701. Defendant acknowledges that the Court’s award of $436,000 plus statutory interest after trial of the claim (Mann v State of New York, Ct Cl, Dec. 24, 2007, Schaewe, J., Claim No. 109113 [UID # 2008-044-007]) was substantially in excess of defendant’s original offer of $272,600. Defendant also agrees that the expenses incurred for trial preparation and legal research, as well as the appraisal, were necessary to achieve just and adequate compensation. EDPL 701 authorizes a claimant to apply for reimbursement of costs incurred during the course of an appropriation action, including counsel fees and appraisal expenses, when “[t]he 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.” These allowances “provide a means of mitigating the financial damage wrought by the condemnor’s low, original offer” (General Crushed Stone Co. v State of New York, 93 NY2d 23, 27 [1999]). However, it should be noted that the allowances are not mandatory (see Hakes v State of New York, 81 NY2d 392 [1993]).

In determining whether allowances should be given, and how much, the Court must assess whether: 1) the award is substantially more than what was initially offered by the condemnor, and 2) the expenses were incurred to achieve just and adequate compensation (EDPL 701; Matter of Village of Johnson City [Waldo’s Inc.], 277 AD2d 773, 774 [2000]).

In considering whether the award is substantially more than what was initially offered, the Court examines both the percentage difference between the two figures, as well as the dollar amount. There is no question that this condition has been met in this instance, as the amount of the award ($436,000) was approximately 160% ($163,400) higher than the initial offer ($272,600) (see Matter of Village of Johnson City [Waldo’s Inc.], supra). The Court finds this amount to be substantial within the meaning of EDPL 701.

In determining the second factor, the Court will examine each of the different types of costs separately. Claimant seeks an allowance of $6,775 for the appraisal, trial preparation and testimony of Kenneth V. Gardner, II, claimant’s appraiser.[1] Although the Court did not rely upon Gardner’s appraisal,[2] Gardner’s services were necessary for claimant and counsel to evaluate the State’s initial offer as well as for counsel to prepare for cross examination of defendant’s appraiser. Accordingly, this Court awards claimant $2,000 as an allowance pursuant to EDPL 701 for claimant’s appraiser’s fees.

Claimant seeks an allowance of $81,653.69 for counsel fees, or one-third of the recovery, including interest, over the amount of the initial offer (1/3 x $244,961.08). Claimant and his attorney had a retainer agreement which provided for counsel fees in the amount of one-third of the recovery over the initial offer. Contingency fee agreements “are an acceptable factor to be considered by the courts in determining reasonable counsel fees” in appropriation cases (Matter of Hoffman v Town of Malta, 189 AD2d 968, 969 [1993]), 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, 438 [1995], lv denied 87 NY2d 812 [1996]). The Court finds that such a contingency fee arrangement is both customary and was fair and reasonable in this case, and the fees were necessarily incurred.

In conclusion, the motion is granted and claimant is awarded $2,000 for appraiser’s fees, and $81,653.69 for counsel fees, for a total additional allowance of $83,653.69.


March 10, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on December 4, 2008; Affirmation of Joshua J. Effron, Esq., dated November 12, 2008, and attached exhibits.

2) Affirmation of Joseph F. Romani, Assistant Attorney General, dated December 16, 2008.

Filed papers: Claim filed on March 31, 2004; Amended Claims filed on May 5, 2004 and February 10, 2005.

[1]. Claimant incurred fees of $3,750 for the appraisal, and $3,025 for Gardner’s trial preparation and testimony.
[2]. The Court rejected all three of the comparable sales used in Gardner’s sales comparison approach as being not comparable, and found neither the income capitalization method nor the cost approach to be appropriate in this particular instance.