New York State Court of Claims

New York State Court of Claims
BDG v. THE STATE OF NEW YORK, # 2018-045-018, Claim No. 122519, Motion No. M-91702

Synopsis

Motion after trial decision pursuant to EDPL 701 seeking an order awarding claimant an additional allowance in the sum of $328,681.05 for actual and necessary costs, disbursements and expenses, consisting of reasonable attorneys' fees, expert witness fees and disbursements actually incurred by claimant in prosecuting the claim.

Case information

UID: 2018-045-018
Claimant(s): BDG 115 LAND, LLC
Claimant short name: BDG
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122519
Motion number(s): M-91702
Cross-motion number(s):
Judge: GINA M. LOPEZ-SUMMA
Claimant's attorney: Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.
By: Saul R. Fenchel, Esq.
Defendant's attorney: Hon. Eric T. Schneiderman, Attorney General
By: Charles E. Gary, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 3, 2018
City: New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Attached Affidavit of Brad Blumenfeld, Attorney's Affirmation with annexed Exhibits A-K, Claimant's Memorandum of Law, Defendant's Affirmation in Opposition with annexed Exhibits 1-3, Defendant's Memorandum of Law, Claimant's Reply Affirmation with annexed Exhibit A and Claimant's Reply Memorandum of Law.

Claimant, BDG 115 Land, LLC, has brought this motion pursuant to Eminent Domain Procedure Law (EDPL) 701 for an Order granting it an additional allowance in the sum of $328,681.05 for actual and necessary costs, disbursements and expenses, consisting of attorneys' fees, expert witness fees and disbursements actually incurred by claimant in order to achieve just and adequate compensation. Defendant, the State of New York, opposes the motion.

On May 4, 2017, this Court issued a Decision awarding claimant a total of $950,000.00 in damages with interest as stated therein for the partial appropriation of property, as well as a temporary easement on the property, owned by claimant.

Claimant brought this motion pursuant to EDPL 701 for an additional allowance of $229,658.98 for attorney's fees; $46,550.00 for appraiser's fees; $44,902.25 for engineer's fees; $3,469.82 for trial related disbursements; and $4,100.00 for a survey.

EDPL 701 provides :

"In instances where the 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, the court, upon application, notice and an opportunity for hearing, may in its discretion, award to the condemnee an additional amount, separately computed and stated, for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees actually incurred by such condemnee. The application shall include affidavits of the condemnee and all parties that have incurred expenses on the condemnee's behalf, setting forth inter alia the amount of the expenses incurred."

The underlying policy of the statute is to provide "fairness to a private property owner forced to litigate the value of its property when the State comes forward with an unreasonably low offer in effecting a taking of that property" (General Crushed Stone Co. v State of New York, 93 NY2d 23, 25 [1999]. "The statute requires two determinations: first, whether the award is 'substantially in excess of the amount of the condemnor's proof' and second, whether the court deems the award necessary 'for the condemnee to achieve just and adequate compensation.' Where both tests are satisfied, the court may award reasonable fees" (Hakes v State of New York, 81 NY2d 392, 397 [1993]). It is well settled that the first prong of the test refers to a comparison by the Court of the initial offer made by the condemnor and the ultimate amount awarded (CMRC, Ltd. v State of New York, 16 AD3d 204 [1st Dept 2005]; Madowitz v State of New York, 288 AD2d 443 [2d Dept 2001]); Matter of Village of Johnson City [Waldo's, Inc.], 277 AD2d 773 [3d Dept 2000]). More than a modest increase in value is required to satisfy the first requirement of the statute (Matter of County of Tompkins, 298 AD2d 825 [3d Dept 2002]).

Defendant made an original offer of payment in this matter of $304,575.00. The Court finds that the ultimate award of $950,000.00, which is approximately 200% above the initial offer, substantially exceeds defendant's initial offer (Madowitz v State of New York, 288 AD2d 443 [2d Dept 2001]; Matter of Village of Johnson City [Waldo's, Inc.], 277 AD2d 773 [3d Dept 2000]).

The Court must now determine whether the award is necessary for the condemnee to achieve just and adequate compensation. Claimant is seeking $229,658.98 for attorney's fees. Claimant has submitted a retainer agreement in support of its claim for attorney's fees which outlines an hourly fee rate for a certain portion of legal services as well a contingency fee rate. The contingency fee portion of the retainer provides that counsel shall be entitled to twenty-five (25%) percent of all amounts above the advance payment tendered by the condemnor if the case goes to trial. Contingency fee arrangements are an acceptable factor to be considered by the courts in determining reasonable counsel fees (Matter of City of Long Beach v Sun NLF L.P., 146 AD3d 775 [2d Dept 2017]; Matter of Hoffman v Town of Malta, 189 AD2d 968 [3d Dept 1993]). Interest attributable to the advance payment should not be included when calculating the attorney's fees (see Court of Claims Act 20 [9]). The Court finds that the contingency fee charged by claimant's attorney is reasonable and was incurred to achieve just and adequate compensation. However, in regard to the hourly portion charged by counsel, the Court finds that those charges were not necessary for claimant to receive just and adequate compensation in this matter (Matter of Village of Port Chester (Bologna), 137 AD3d 802 [2d Dept 2016]). The hourly charges were incurred in an attempt to resolve a related dispute between claimant and its tenant which had no bearing on the ultimate award in this case. Counsel submitted an hourly breakdown of those charges totaling $16,650.00. Consequently, the Court will award the amount of $213,008.98 as appropriate attorney fees in this matter.

Claimant is also seeking $46,550.00 for appraiser's fees. Claimant's expert was retained pursuant to a retainer agreement letter and attached rider dated December 14, 2015 which provided for an appraisal report fee of $15,500.00 as well as additional monies for services over and above the initial retainer such as court testimony, $3,000.00 per daily appearance, and State appraisal review, $300 per hour. Claimant has submitted the appraiser's affidavit which details the appraiser's work associated with the underlying action as well as a breakdown of the appraiser's hourly charges. The Court finds that the appraisal fees totaling $46,550.00 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $46,550.00 to claimant for expert appraisal costs is warranted.

Additionally, claimant is requesting $44,902.25 for engineer's fees. Claimant has submitted the engineer's affidavit which details the engineer's work associated with the underlying action, along with a retainer agreement and invoices. The Court finds that the engineering fees totaling $44,902.00 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $44,902.00 to claimant for expert engineering costs is warranted. (see Matter of Village of Johnson City [Waldo's, Inc.], 277 AD2d 773 [3d Dept 2000]).

Claimant is seeking $3,469.82 for trial related disbursements, disbursements associated with that portion of counsel's work that were billed on an hourly basis, and the Court of Claims filing fee. Claimant is not entitled to an additional award for the $50.00 Court of Claims filing fee since it was previously recovered by claimant as part of the original judgment entered in this matter. Claimant is also not entitled to the disbursements associated with the hourly billing. Those disbursements and the filing fee totaled $445.40. As a result, the Court finds that the disbursements totaling $3,024.42 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $3,024.42 to claimant for disbursements is warranted.

Lastly, claimant is seeking $4,100.00 for a survey which it contends will be required at some point in the future when claimant either finances, transfers or conveys the property. Claimant has merely provided an estimated cost of a survey in support of this expense. EDPL 701 does not provide for reimbursement of estimated costs that may be incurred by claimant at some unspecified time in the future. Thus, the Court shall not award claimant this cost.

Therefore, based on the foregoing, claimant's motion is granted to the extent stated herein. Claimant is awarded the total sum of $307,485.65 ($213,008.98 for attorney's fees; $46,550.00 for expert appraisal costs; $44,902.25 for expert engineer costs and $3,024.42 for disbursements).

This judgment shall be without interest, costs or disbursements (see CPLR 5001[a]; Long Island Pine Barrens Water Corp. v State of New York, 144 Misc 2d 665 [Ct Cl 1989]).

The Chief Clerk of the Court is hereby directed to enter said Judgment accordingly.

May 3, 2018

New York, New York

GINA M. LOPEZ-SUMMA

Judge of the Court of Claims