Download POWERS v. THE STATE OF NEW YORK, #2009-040

POWERS v. THE STATE OF NEW YORK, #2009-040-024, Claim No. 109651, Motion
No. M-75949
Synopsis
EDPL § 701 request for additional allowance granted in part and denied in part.
Case Information
UID:
2009-040-024
Claimant(s):
EDWARD J. POWERS and BARONA E. POWERS
Claimant short name:
POWERS
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
109651
Motion number(s):
M-75949
Cross-motion number(s):
Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Joshua J. Effron, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Audrey V. Bullen, Esq., AAG
Third-party defendant’s attorney:
Signature date:
March 3, 2009
City:
Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
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
offer0. 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
HON. CHRISTOPHER J. MCCARTHY
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
Filed Papers: Claim, Judgment
0.
2
With interest, the amount of the judgment was $64,645.52, which was 588 percent greater than the State’s offer.