Claimant's motion for an additional allowance pursuant to EDPL § 701 was granted.
|Claimant(s):||UNIVERSAL INSTRUMENTS CORPORATION|
|Claimant short name:||UNIVERSAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||LEVENE, GOULDIN & THOMPSON, LLP
BY: Michael R. Wright, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Joseph F. Romani, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 4, 2010|
|See also (multicaptioned case)|
Claimant has brought this motion seeking an additional allowance for appraisal costs, attorneys' fees and disbursements pursuant to EDPL § 701.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of Michael R. Wright, Esq., with Exhibits 1,2
Affidavit of Paul T. Sheppard, Esq., with Exhibits 3
Affidavit of Charles I. Francis, with Exhibits 4
Affirmation of Joseph F. Romani, Esq., Assistant Attorney General 5
Affidavit of Christopher Bennett 6
Affidavit of Peter Marshall 7
In a Decision dated October 27, 2009, this Court awarded claimant the sum of $504,155.00 in connection with takings (both in fee and for temporary easements) which first occurred in July 1996 in the City of Binghamton.
In this motion, claimant seeks an additional allowance of $102,398.36 for the attorney fees and disbursements of Levene, Gouldin & Thompson, LLP, $11,268.46 for the attorney fees of its prior attorneys, Hinman, Howard & Kattell, and $24,961.38 for the fee of its appraiser, Charles I. Francis, totaling $138,628.20.
EDPL § 701 permits the Court, in its discretion, to award a claimant additional monetary compensation for the reimbursement of costs incurred during the course of an appropriation action, including attorneys' fees and appraisal expenses, when "[t]he order or award is substantially in excess of the amount of the condemner's proof and where deemed necessary by the court for the condemnee to achieve just and adequate compensation." (General Crushed Stone Co. v State of New York, 93 NY2d 23, 27). Pursuant to EDPL § 701, the court must therefore determine whether (1) the award is substantially in excess of the amount of the pre-litigation offer, and (2) the expenses were necessarily incurred by the claimant in order to achieve just and adequate compensation (Hakes v State of New York, 81 NY2d 392).
In its trial Decision, this Court awarded claimant the sum of $504,155.00, while the State's proof at trial was $173,450.00. Based on these figures, the Court hereby finds (and defendant concedes) that the award substantially exceeds the State's proof at trial. Furthermore, as set forth in claimant's moving papers, the advance payments made by the State to claimant totaled $173,040.00. Accordingly, the award also substantially exceeds the State's original offer.
As set forth in their respective Affidavits, Michael R. Wright, Esq. and Paul T. Sheppard, Esq. have established that they each had a retainer agreement with claimant concerning this matter based upon an hourly fee for the work performed. The Court finds that these hourly rates are usual, customary, and reasonable, and further finds that the legal work performed, together with expenses, was necessarily incurred in order for the claimant to achieve just and adequate compensation. The Court also notes that defendant has conceded that these expenditures for trial preparation, legal research, and expenses were necessarily incurred.
Claimant also seeks an award in the amount of $24,961.38, representing the fees, expenses and disbursements of its appraiser, Charles I. Francis. In its trial Decision, this Court adopted the concept advanced by Mr. Francis that claimant's property should be valued as two separate parcels (East Parcel and West Parcel). The Court necessarily relied upon the valuation concept advanced by Mr. Francis, as it rejected the approach by defendant's appraiser, Mr. Frommer. The Court therefore relied heavily upon claimant's appraisal in its determination of value and damages. However, the Court did find that Mr. Francis' valuation of the West Parcel was exaggerated, and further disagreed with Mr. Francis' finding that the appropriation resulted in a complete lack of access to this West Parcel. Furthermore, contrary to Mr. Francis' appraisal, the Court did not find any consequential damages for the East Parcel.
Therefore, even though the Court relied upon the testimony and appraisal of Mr. Francis concerning the valuation of the property, the appraisal provided limited or no assistance in certain aspects. Accordingly, the Court hereby awards claimant the sum of $15,000.00 as an allowance for claimant's appraiser fees and expenses.
In sum, the Court hereby awards claimant the sum of $102,398.36 for the attorney fees and disbursements of Levene, Gouldin & Thompson, LLP, the sum of $11,268.46 for the attorney fees and disbursements of Hinman, Howard & Kattell, and the sum of $15,000.00 for appraiser fees and expenses of Charles I. Francis, for a total additional allowance of $128,666.82. This award shall be without interest, costs or disbursements.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 4, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims