Additional allowance granted pursuant to § 701 of the Eminent Domain Procedure Law.
|Claimant(s):||JOSEPH M. HAGE|
|Claimant short name:||HAGE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||BOND, SCHOENECK & KING, PLLC
By: Rebecca M. Neri, Esquire
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Patricia M. Bordonaro, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 1, 2010|
|See also (multicaptioned case)|
Claimant brings this motion pursuant to Eminent Domain Procedure Law § 701 seeking an order granting additional allowances for expenses incurred in bringing an action to recover for the taking of his property. Defendant does not object to the relief requested.
Eminent Domain Procedure Law (hereinafter EDPL) § 701 provides that where the order or award in an appropriation action is substantially in excess of the condemnor's proof and where it is necessary for the condemnee to receive just and adequate compensation, the Court may, in its discretion, award to the condemnee an additional amount for actual and necessary costs, disbursements, and expenses including reasonable attorney, appraiser and engineer fees actually incurred by such condemnee. Movant, here, seeks additional compensation for attorney and appraiser fees and other disbursement costs.
Although the EDPL § 701 does not quantify by how much the award must exceed the condemnor's proof, the Court finds that the award in this appropriation action was substantially in excess of the condemnor's proof. The initial offer was $138,000 and Claimant was awarded $273,184 in total damages. Here, the Court's total award of damages was 197.95 % higher than the Defendant's initial offer, a substantial difference (Matter of the Village of Johnson City, 277 AD2d 773).
The next inquiry is whether an additional allowance for attorney and appraiser fees and disbursements is necessary in order to provide Claimant with just and adequate compensation. Claimant seeks $40,555.20 for attorneys fees, plus 30% of the total interest of judgment as part of the attorneys fees of $59,014.86, $6,675 for appraisal fees, and $2,011.58 for disbursements and $976.50 for a copy of the transcript for a total additional judgment of $109,233.14.
Claimant submits an affidavit from Kenneth Gardner, the appraiser retained by Claimant. Mr. Gardner indicates that the appraisal fee involved a visit to the subject property and a review and study of comparable sales, interviews with real estate brokers and developers, research of county and town records, preparation of the actual appraisal report, review of the State's appraisal, including inspecting and verifying all sales and rentals, preparing a written critique of the State's appraisals, pre-trial preparation with Claimant's counsel, attendance and testimony during three days of trial. The total cost for Mr. Gardner's services is $13,350. Some of this cost is related to his work on the related claim J. G. C. Hage Realty, Inc. v State of New York, Claim No. 105407. Mr. Gardner indicates that he did not keep track of his specific time for each parcel, but opines that a fair division would be to apportion one-half of the total cost to each parcel, or $6,675 attributable to this claim.
In making a determination as to whether an expense incurred by Claimant requires a separate award pursuant to EDPL § 701 the Court must review the bases for the award and "[disregard] those expenses and services not contributing thereto" (Meyers v State of New York, 166 Misc 2d 586, 590; Brown v State of New York, Ct Cl, Read, Presiding J., Cl. No. 88093, Motion No. M-63028). Costs related to unsuccessful or rejected arguments are frequently rejected (Matter of the Village of Johnson City, 277 AD2d 773, 775). Here, the Court relied on Claimant's appraisal report, after making certain adjustments, to determine the value of the property, direct damages and indirect damages. The Court finds that the expenses incurred for Mr. Gardner's expertise were necessary for Claimant to receive just compensation for this appropriation. One-half of the total cost for his services is appropriately attributable to this claim, and the Court awards an additional allowance in the amount of $6,675 for Mr. Gardner's appraisal services.
Claimant also seeks an award for counsel fees. Claimant and his counsel agreed to a contingency fee of 30% of any amount awarded including interest in excess of the original offer. A copy of the letter retainer agreement was provided to the Court as Exhibit C, although the Court is not bound by such an agreement (see Matter of City of Yonkers v Celwyn Co., 221 AD2d 437, 438). 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; Norboro Realty Co., Inc. v State of New York, Ct Cl, O'Rourke, J., filed Oct. 5, 2000, Cl. No. 96631, Motion No. M-61971). The Court finds that a contingency fee has been reasonably incurred and an additional award for this fee is necessary in order to achieve just and adequate compensation.
Interest on the appropriation award has been calculated at $188,975.03 (9% per annum on $273,184.00 from April 1, 1999 to October 1, 1999, and then from December 28, 2001 to March 5, 2009), plus $7,741.16 (9% per annum on $462,159.03 ($273,184.00 + $188,975.03) from March 5, 2009 to May 12, 2009 (see Exhibit B). The total interest awarded was $196,716.19 and interest attributable to the advance payment ($99,371.98) must be deducted from this amount (see Court of Claims Act § 20 ). Counsel, based upon the retainer agreement, is entitled to 30% of that amount or $29,203.26 plus 30% of $135,184.00 or $40,555.20. The Court will award the additional sum for total attorneys fees in the amount of $69,758.46.
The Claimant also seeks an award for disbursements in the amount of $2,011.58, which is one-half of the disbursements for both this claim and the related claim, J.G.C. Hage Realty, Inc. v State of New York, Claim No. 105407. These charges appear to be reasonable expenses incurred for purposes of this litigation. Claimant also seeks an award for the total cost of the transcript for both claims. The Court finds that this cost should also be divided between the two claims ($976.50÷2 = $488.25). Accordingly, the Court awards $2,499.83 total for disbursements as necessary for just and adequate compensation.
Based upon the foregoing, the Court grants Claimant's motion for an additional allowance for attorney and appraiser fees and disbursements in the amount of $78,933.29. This judgment shall be without interest, costs, or disbursements.
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 1, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following papers in deciding this motion:
1. Notice of Motion.
2. Affidavit of Rebecca M. Neri, Esquire, sworn to October 16, 2009, in support, with exhibits attached thereto.
3. Affidavit of Joseph M. Hage, sworn to October 12, 2009, in support, with exhibits attached thereto.
4. Affidavit of Kenneth Gardner, sworn to October 14, 2009, in support, with exhibit attached thereto.
5. Letter from Patricia M. Bordonaro, Esquire, Assistant Attorney General, dated November 25, 2009.