|Claimant(s):||BRADLEY H. HAFNER|
|Claimant short name:||HAFNER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Hiscock & Barclay, LLP
By: Mark R. McNamara, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 2, 2010|
|See also (multicaptioned case)|
The following were read and considered with respect to Claimant's motion for an additional allowance pursuant to Eminent Domain Procedure Law (EDPL) § 701:
1. Notice of Motion filed December 17, 2009 with supporting affirmation of Mark R.
McNamara, Esq. dated December 14, 2009 and annexed exhibits 1-4; affirmation of Randolph C. Oppenheimer, Esq. dated December 14, 2009; and Claimant's Memorandum of Law dated December 14, 2009;
2. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn to
January 6, 2010; and
3. Reply affirmation of Mark R. McNamara dated January 11, 2010 with annexed
Filed papers: Decision of Moriarty, J., filed July 22, 2009; Judgment entered September 10, 2009.
On June 8, 2005 defendant State of New York appropriated a triangular shaped parcel of unimproved property containing 11,258 square feet (0.26 acre) located on Southwestern Boulevard (US Route 20) in the Town of Hamburg, Erie County, New York, pursuant to Highway Law § 30 and the EDPL. Following trial Claimant was awarded damages totaling $106,950.00 plus statutory interest. The amount of the advance payment was $29,400.00. 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 fees in the amount of $25,833.33(1) which is 33 1/3% of the difference between the Court's award ($106,950.00) and Defendant's advance payment ($29,400.00); appraisal fees paid to Howard P. Schultz & Associates, LLC in the amount of $8,330.00; and disbursements in the amount of $1,352.00.
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 $29,400.00. After trial, this Court awarded Claimant $106,950.00 for the Claim which is approximately 364% greater than the condemnor's offer of advance payment and more than twelve (12) times greater than Defendant's proof of damages at trial ($8,500.00). Subsequently, a judgment, including accrued interest, was entered in the amount of $141,228.27 which is approximately 480% 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 $8,330.00 for appraisal fees which includes $4,700.00 for the appraisal and $3,180.00 for the trial appearance and testimony of Claimant's appraiser Howard P. Schultz and his assistant, Jeffrey V. Davis (see affirmation of Mark R. McNamara, Esq., Exhibit 4). Defendant argues that any allowance for appraisal fees should be reduced by $330.00, the amount charged for the appearance of Jeffrey V. Davis because he did not testify at trial. The Court agrees. Otherwise, the Court finds that Claimant's expert appraisal proof was necessary to achieve just and adequate compensation and awards Claimant the sum of $7,550.00 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 [A] ).
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 $29,400.00 and the Court's award. The Court notes that contingency fee arrangements, based upon the final award, 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 attorneys' skills and the result obtained, the Court finds the fee of $25,850.00 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 $29,400.00 and Claimant's claim for damages in the amount of $275,000.00, the Court finds that it was necessary for Claimant to retain counsel in an attempt to achieve just compensation and, therefore, attorney fees were necessarily incurred expenses.
The Court now turns to Claimant's request for reimbursement of costs and disbursements in the amount of $1,352.00. The Court finds that the costs and disbursements were reasonable and necessarily incurred to achieve just and adequate compensation.
Based upon the foregoing, Claimant is awarded an additional allowance for actual, reasonable and necessary expenses incurred for appraisal fees in the amount of $7,550.00; legal fees in the amount of $25,850.00 and costs and disbursements in the amount of $1,352.00 for a total of $34,752.00 to achieve just and adequate compensation for the property acquired by Defendant.
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 2, 2010
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims
1. The actual amount on which the attorney fees should be computed is $77,550.00 ($106,950.00 minus $29,400.00) and 1/3 of that amount is $25,850.00.