New York State Court of Claims

New York State Court of Claims
FUSCHETTO v. THE STATE OF NEW YORK, # 2020-045-039, Claim No. 124644, Motion No. M-95297

Synopsis

Claimants' motion for 701 fees.

Case information

UID: 2020-045-039
Claimant(s): RENATO FUSCHETTO AND ADELE FUSCHETTO
Claimant short name: FUSCHETTO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124644
Motion number(s): M-95297
Cross-motion number(s):
Judge: Gina M. Lopez-Summa
Claimant's attorney: Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.
By: Michael M. Fufidio, Esq.
Defendant's attorney: Hon. Letitia James, Attorney General
By: Rosalinde Casalini, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 22, 2020
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read and considered by the Court on this motion: Claimants' Notice of Motion; Attorney's Affirmation with annexed Exhibits A-N; Affidavit of William J. Lahti; Affidavit of Elinor Brunswick; Claimants' Memorandum of Law; Defendant's Affirmation in Opposition with annexed Exhibits A-C; Defendant's Memorandum of Law; Claimants' Reply Affirmation with annexed Exhibits 1-5; and Claimants' Memorandum of Law.

Claimants, Renato and Adele Fuschetto, have brought this motion pursuant to Eminent Domain Procedure Law (EDPL) 701 for an Order granting it an additional allowance in the sum of $73,847.75 for actual and necessary costs, disbursements and expenses, consisting of attorney's fees, expert witness fees and disbursements actually incurred by claimants in order to achieve just and adequate compensation. Defendant, the State of New York, opposes the motion.

On August 3, 2018, this Court issued a Decision awarding claimants a total of

$289,530.00 in damages with interest as stated therein for the partial appropriation of property, as well as a temporary easement on the property, owned by claimants.

Claimants brought this motion pursuant to EDPL 701 for an additional allowance of $44,294.11 for attorney's fees; $15,150.00 for appraiser's fees; $ 12,966.29 for engineer's fees and $1,437.35 for trial related disbursements.

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 $167,200.00. The Court finds that the ultimate award of $289,530.00, which is approximately 73% above the initial offer, substantially exceeds defendant's initial offer (Matter of Village of Haverstraw [AAA Electricians, Inc.], 165 AD3d 955 [2d Dept 2018]; 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. Claimants are seeking $44,294.11 for attorney's fees. Claimants have submitted a retainer agreement in support of their claim for attorney's fees which provides that counsel shall be entitled to twenty-five percent of all amounts above the advance payment tendered by the condemnor including interest on the excess amount. 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 claimants' attorney is reasonable and was incurred to achieve just and adequate compensation. Consequently, the Court will award the amount of $44,294,11 as appropriate attorney fees in this matter.

Claimants are also seeking $15,150.00 for appraiser's fees. Claimants' appraiser, Elinor Brunswick, explained that she charged claimants $4,500.00 for all work performed through the preparation of the appraisal report. Any services performed after preparing the appraisal report and up to trial were billed at the rate of $350.00 per hour. Claimants were responsible for any out-of-pocket disbursements and court testimony was billed at $3,500.00 per day. Ms. Brunswick provided details of her work associated with the underlying action as well as a breakdown of her hourly charges. Her invoice contained dates that were inconsistent with the dates of trial. However, her supplemental affidavit established that her initial invoice contained typographical errors and all work was performed and completed prior to the trial. Ms. Brunswick corrected the typographical errors on her revised final invoice The Court finds that the appraisal fees totaling $15,150.00 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $15,150.00 to claimants for expert appraisal costs is warranted.

Additionally, claimants are requesting $12,966.29 for engineer's fees. Claimants have submitted the engineer's affidavit which details the engineer's work associated with the underlying action, along with invoices. The Court finds that the engineering fees totaling $12,966.29 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $12,966.29 to claimants for expert engineering costs is warranted (see Matter of Village of Johnson City [Waldo's, Inc.], 277 AD2d 773 [3d Dept 2000]).

Claimants are seeking to recover for disbursements which include, $50.00 for the Court of Claims filing fee; $597.45 for title related expenses; $501.15 in charges for oversized copies for trial; $249.15 for a deposition transcript and $39.60 for the trial transcript. Claimants are not entitled to an additional award for the $50.00 Court of Claims filing fee since it was previously recovered by claimants as part of the original judgment entered in this matter. In addition, with respect to the deposition transcript, the invoice is titled "Riccobono" with a handwritten notation Riccobono 50% and Fuschetto 50%. Without further explanation, claimants have failed to establish that this cost was attributable to the present case. As a result, the Court finds that the disbursements totaling $1,138.20 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $1,138.20 to claimants for disbursements is warranted.

Therefore, based on the foregoing, claimants' motion is granted to the extent stated herein. Claimants are awarded the total sum of $ 73,548.60 ($44,294.11 for attorney's fees; $15,150.00 for expert appraisal costs; $12,966.29 for expert engineer costs; and $1,138.20 for trial 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.

June 22, 2020

Hauppauge, New York

Gina M. Lopez-Summa

Judge of the Court of Claims