Matter of City of New York

[*1] Matter of City of New York 2009 NY Slip Op 51948(U) [24 Misc 3d 1251(A)] Decided on September 9, 2009 Supreme Court, Queens County Gerges, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 28, 2009; it will not be published in the printed Official Reports.

Decided on September 9, 2009
Supreme Court, Queens County

In the Matter of the Application of The City of New York, relative to acquiring title in fee simple and other interests in certain real property not heretofore acquired for Powell's Cove Environmental Waterfront Park, Queens.



14010/00



M. Robert Goldstein, Esq.

Goldstein Goldstein Rikon & Gottlieb PC

80 Pine Street

New York, NY 10005

Fred Kolikoff, Esq.

City of NY Law Dept.

Condemnation Division

100 Church Street

New York, NY 10007

Abraham G. Gerges, J.

Upon the foregoing papers, in this condemnation proceeding, claimant Cove Properties, Inc. (Malba or claimant), moves for an order, pursuant to Eminent Domain Proceeding Law (EDPL) § 701, directing the condemnor, the City of New York (the City), to pay an additional allowance in the amount $1,280,945.47 for attorneys' fees and expenses and $154,900 to Ticor Title Insurance Company (Ticor).

[*2]Facts and Procedural BackgroundClaimant is the former owner of Block 3963, Lot 110; Block 3989, Lots 1, 20, and 25; Block 3990, Lot 75; Block 3991, Lot 1; Block 3922, Lot 1, Block 3993, Lot 20; and Block 3994, Lots 1 and 21 in Queens County. On February 7, 1996, the City acquired the property for the development of Powell's Cove Environmental Waterfront Park.

This proceeding generated extensive motion practice since it was first commenced in Queens County in 1995. Soon after commencement, by cross motion returnable December 20, 1995, New York State (the State) sought dismissal of the petition against it, arguing that it was the owner of the property, that the City lacked the power to condemn State owned property and that the court did not have jurisdiction over the State by virtue of the State's sovereign immunity. By order dated February 7, 1996, the Honorable Edwin Kassoff permitted the City to withdraw its petition as it pertained to the State and the City's petition was granted, subject to the interest of State, if any.

After the case was transferred to Kings County, claimant made a motion seeking to compel the City to make an advance payment, tracing its title back to the Lovelace Patent of 1670 and advancing several other theories upon which its ownership of the property could be premised. The City opposed that motion, arguing that it owned the property, tracing its title back to the Kieft Patent of 1645, the Nicolls Patent of 1666 and the Dongan Patent of 1685, which created the Town of Flushing. By decision and order dated October 30, 2001, the court granted claimant's motion, concluding that:

"[T]he court finds that Malba holds title to the disputed parcels of property on the grounds that its title can be traced back to the Lovelace Patent of 1670, which conveyed the subject property to Captain William Lawrence; that the deeds dating back to 1824, pursuant to which title to the subject property was conveyed, evidence a valid chain of title; even if the Lovelace Patent did not convey the subject property to Captain Lawrence, Malba and its predecessors in interest have acquired title by adverse possession of the property since 1670; and the City is collaterally estopped from litigating the issue of title in this proceeding, having sought to intervene in [a prior related proceeding] on the grounds that it was the owner of an adjacent property, without raising the argument that it was the title holder of the subject property."

(October 30, 2001 Decision, p 40-41). The City filed a notice of appeal on January 18, 2002 and withdrew the appeal by letter dated June 24, 2002.

Thereafter, the City persisted in its refusal to make an advance payment, arguing that it would not tender any money until claimant filed proof of title acceptable to the City and secured a release from the State. Accordingly, claimant again moved for an order compelling the City to make an advance payment to it and to comply with the October 30, 2001 decision. By decision dated February 10, 2004, the court granted claimant's motion and the City was again directed to make an advance payment. Therein, the court reasoned, briefly stated, that the October 30, 2001 decision was law of the case and [*3]precluded the City from refusing to make an advance payment by seeking to force claimant to litigate the issue of whether the State held title to the property. The City's subsequent motion to reargue that decision was denied by order and decision dated August 6, 2004. The action was then transferred to this part.

The City then moved for an order of interpleader, seeking to resolve the issue of the interest in the property, if any, held by the State. That motion was denied by decision and order dated November 15, 2004, in which this court held that the order vesting title to the property in the City, subject to the interest, if any, of the State that Judge Kassoff signed must be interpreted as an election by the City to forego litigating the issue of the State's interest in the property. Accordingly, in reliance upon the doctrines of collateral estoppel and law of the case, the City was again ordered to make an advance payment to claimant.

Thereafter, the City paid claimant an advance payment of $890,000, plus interest in the amount of $392,600.55, for a total of $1,272,600.55, and the proceeding moved toward trial. In its appraisal report, claimant relied upon an appraisal report prepared by Daniel Sciannameo of Albert Valuation Group of New York, Inc., to value the property at $10,000,000. This report was premised upon the findings of an engineer and an architect, both of whom appeared and testified at trial. In reliance upon an appraisal report prepared by Jerome Haims, the City valued the property at $890,000. By decision dated June 30, 2006, claimant's motion for permission to file an amended appraisal report was denied. After a four day non-jury trial that took place on July 12, 14, 17 and 18, 2006, by decision dated February 15, 2007, this court awarded claimant $9,067,480, plus interest.

On settlement of the order, claimant submitted papers including a memorandum of law in which it contended that it should be awarded statutory interest at the rate of 6%, compounded annually, since simple interest would not provide just compensation because of the extended period of time during which the instant action was litigated. The City opposed that application. By final decree issued on June 7, 2007, this court awarded claimant interest, compounded annually. The City filed a Notice of Appeal dated June 28, 2007, perfected the appeal and served and filed its appellant's brief early in 2008. After it was served with respondent's brief on April 23, 2008, the City withdrew its appeal.

At the time that it took its appeal, the City deposited funds representing the award due with the court in an attempt to stop the running of interest. By decision dated September 19, 2007, this court held that depositing the condemnation award, plus interest, into the court did not serve to toll the accrual of interest and granted claimant a judgment declaring that statutory interest continued to run on the award at the rate of 6% per year, compounded annually, from the vesting of title on February 29, 1996 until such time as the date of availability of payment, or until further order of this court or of the Appellate Division, Second Department, otherwise directs.

Further, the City deposited the funds with the court in the name of Malba, despite [*4]the fact that the funds had been assigned to various members of the Golia family, as the owners of Malba. That the award was so assigned is supported in an affidavit submitted by Rosalie Grecco, a shareholder of claimant; proof of the assignment was allegedly provided to the City. This resulted in the need for another motion to direct the payment of the funds deposited with the court to the assignees. When the award was collected on November 8, 2008, claimant received $18,953,346.72, of which $9,885,466.72 represented interest. Another motion followed to determine the amount of interest payable to the IRS, which motion was settled before it reached the court.

Claimant's Contentions

In support of its motion, claimant relies upon an affirmation from counsel, who has been personally involved in this matter for 13 years, since the firm of Goldstein, Goldstein & Rikon, P.C., as predecessor in interest to Goldstein, Goldstein, Rikon & Gottlieb, P.C. (the Firm), was retained on February 29, 1996. By written retainer dated March, 1996, claimant agreed to pay the Firm "four (4%) percent of the total award and interest that may be made or the amount paid for said property. The attorneys' fee shall be computed on the gross amount recovered. The client shall pay any and all expenses, disbursements, appraisers and experts fees." By letter agreement dated November 19, 2002, the fee was increased to 6% of the total award and interest to reflect the increased amount of work performed. Claimant argues that it is entitled to recover this fee, or $1,137,280, plus expenses incurred, pursuant to EDPL 701. The City ultimately paid claimant and claimant paid this fee.

In another affidavit, Mr. Sciannameo alleges that he prepared an appraisal report and a rebuttal report for Malba and he testified at trial; he charged $75,125 for his services. Paul Bonfilio, an architect, submits an affidavit in which he alleges that he was retained by claimant to prepare a report with regard to the probability that the City would demap paper streets and to testify at trial; he charged $5,545.81. Ronald Ogur, a professional engineer, submits an affidavit in which he alleges that he was retained by Malba to prepare alternate plans for development of the property, taking into consideration applicable Zoning resolutions, and to testify at trial; he charged $44,250. Claimant thus argues that it should be awarded an additional allowance of $124,920.81 to pay these expenses. The Firm also seeks to receive an additional allowance of $18,744.66 for expenses incurred, i.e, $1,665 for faxes, $1,220.88 for FedEx; $878.88 for postage; $2,392.08 for filing fees; $165 for messengers; $220 for certified deeds; $50 for a tax warrant; $4,564 for a court reporter; $5 for a corporation status search; $728.29 for Lexis research; $1,986.65 for travel; and $4,868.88 for photocopies.

Claimant also argues that in addition to being directed to pay the fees and expenses incurred by the Firm, the City should be ordered to pay $154,900 for legal services provided by Kirschenbaum & Kirschenbaum, P.C. (Kirschenbaum), the firm that appeared for claimant on behalf of Ticor, Malba's title insurance company, when the City contested title. In an affirmation from Samuel Kirschenbaum, who had been a senior [*5]partner in that firm, Mr. Kirschenbaum avers that he personally handled the matter, which involved complex legal and title issues, and that he billed his time at $400 an hour. Claimant's request for attorneys' fees billed by Kirschenbaum is supported by what Mr. Kirschenbaum alleges are contemporaneously prepared billing statements. Kirschenbaum was paid as provided in the policy of insurance.

The City's Contentions

In opposition, the City concedes that the award that claimant received was "substantially in excess of the amount of the condemnor's proof," i.e., "several million dollars over the amount of the City's appraisal and more than double the amount of the City's appraisal." The City similarly concedes that an additional award is required to achieve just and adequate compensation. The City accordingly does not contest claimant's entitlement to the award of an additional allowance pursuant to EDPL 701.

The City argues, however, that an award of attorneys' fees in the amount of 6% of the gross amount paid for the property is not reasonable. More specifically, the City contends that the court is not bound to award fees pursuant to claimant's retainer agreement with counsel. The City further argues that the Firm is not entitled to receive 6% of the interest awarded, since interest is not obtained through the efforts of counsel, but is self generated by operation of law. The City therefore concludes that even assuming that claimant is entitled to recover attorneys' fees pursuant to its agreement with counsel, the award should be limited to $544,048.80, or 6% of the award of $9,067,480, before interest was added.

The City also contends that the fees paid to Ticor are not compensable, since the EDPL provides only for an award of costs to the condemnor. Further, the court should not award claimant $728.29 for Lexis research, since this sum should be subsumed in counsel's fee because legal research "is part and parcel of an attorney's representation of a client." The City also argues that claimant should not be awarded any sum for travel expenses, since there is no evidentiary basis to support the claim that $2,000 was expended, particularly since the Firm maintains its offices in Manhattan and the action was litigated in Brooklyn.

The City thus concludes that claimant's motion should be denied to the extent that it seeks attorneys' fees in excess of $544,048.80, fees to be paid to Ticor in the amount of $154,900, Lexis research billed at $728.29 and travel expenses in the amount of $1,986.65.

[*6]The Law

" EDPL 701[FN1] assures that a condemnee receives a fair recovery by providing an opportunity for condemnees whose property has been substantially undervalued to recover the costs of litigation establishing the inadequacy of the condemnor's offer'" (Town of Islip v Sikora, 220 AD2d 434, 437 [1995], quoting Hakes v State of New York, 81 NY2d 392, 397 [1993]). In interpreting this provision, it has been held that "[t]he 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, 81 NY2d at 397). The statute is intended to permit a condemnee to "recover a wider array of litigation costs, including attorney, appraiser and engineering fees" (General Crushed Stone Co. v State, 93 NY2d 23, 27 [1999]; see also Matter of City of New York, 52 AD3d 387, 388 [2008]; City of Yonkers, 221 AD2d 437, 438 [1995], lv denied 87 NY2d 812 [1996]).

It is also well settled, however, that where costs are expended to develop and present valuation theories to support a claim for compensation substantially in excess of what the court awarded, the court should exercise its discretion and award additional amounts substantially less than what claimant asks (see e.g. China Plaza Co. v City of New York (In re City of New York), 254 AD2d 210 [1998]; accord In re Acquisition of Real Prop. by Village of Johnson City, 277 AD2d 773, 775 [2000] [considering that the ultimate award exceeded petitioner's initial appraisal by less than 20% and that a substantial part of claimant's counsel and appraisal fees were expended in an effort to achieve an inflated value and propounding valuation theories that were totally rejected by the trial court, the record supported a finding that the claimed expenses were not necessarily incurred to achieve just and adequate compensation]). Similarly, EDPL 701 also "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'" (Town of Islip, 220 AD2d at 437, quoting Hakes, 81 NY2d at 397). [*7]

As is also relevant herein and as was recognized by this court in a previous decision, In re City of New York (1 Misc 3d 911A, 2003 NY Slip Op 51645U [2003]):

"[I]t is now well settled that contingency fee arrangements are an acceptable factor to be considered by the courts in determining reasonable counsel fees (see e.g. Hoffman v Town of Malta, 189 AD2d 968, 969; Application of New York City Transit Auth., 150 Misc 2d at 921 [the Law Revision Commission to the 1987 Legislature stated that the courts can decide on a case-by-case basis whether a contingent fee arrangement is reasonable under EDPL 701 (1987 Report of NY Law Rev Commn, 1987 McKinney's Session Laws of NY, at 2007-2012)]). Further, it has been recognized that:

" however "reasonable" the contingent fee may be from the client's standpoint or enforceable between the parties under contract law, a fee sought by means of § 701 is one to be paid by the condemnor from public funds without any input into the terms of the retainer. Condemnees may not set the standard of reasonableness.'"

"(In re New York State Urban Dev., 183 Misc 2d 900, 904; accord Application of New York City Transit Auth., id.). Thus, while a contingency retainer may be appropriately considered on a fee application under § 701, the court is not necessarily bound by its terms' (In re New York State Urban Dev., 183 Misc 2d at 904, citing City of Yonkers v Celwyn Co., 221 AD2d 437, 438, lv denied 87 NY2d 812)."

(In re City of New York, 1 Misc 3d 911A, 4-5; accord Matter of City of New York v Jamaica Arms Hotel, 44 AD3d 1040, 1041 [2007] [the trial court was not bound by a contingency fee retainer agreement entered into by the claimant for representation in the prior appeal; it was only required to assess reasonable attorney's fees]). In that decision, this court went on to note that contingency fees in amounts of up to one-third of the award have been upheld by the court (id. at 5, citing Application of New York Convention Ctr. Dev., 234 AD2d 167 [25% of the total recovery]; City of Yonkers, 221 AD2d 437 [one half of the amount requested pursuant to the sliding-scale contingency retainer agreement was found to be reasonable]; Hoffman, 189 AD2d 968 [contingency fee of 25% of the award was reasonable]; In re New York State Urban Dev., 183 Misc 2d 900 [10% of the award representing the advance payment, including interest, was found to be reasonable, which sum was 50% of the 20% contingency provided in retainer agreement]; see also Meyers v State, 166 Misc 2d 586, 589 [1995] [the court rejected an attorneys' fee of 50% of any monies recovered above the State's advance payment, as provided in claimant's retainer agreement, and instead found that a one-third fee of the award, without interest, was an appropriate starting point for determining a proper additional allowance for attorneys' fees]).

Similarly, it has been recognized that "[s]ince the advance payments . . . were essentially self-generated by the condemnor it cannot be seriously contended that the [*8] costs . . . incurred by such condemnee' were necessary' for the production of the [award received]" (In re New York State Urban Dev. Corp., 183 Misc 2d at 905; accord In re City of New York, 2003 NY Slip Op 51645U at 6). With regard to the issue of whether a claimant is entitled to an award of attorneys' fees premised upon the final award, including interest, it has been held, in interpreting Condemnation Law § 16(2), the predecessor to EDPL 701, that "[t]he court erred . . . in computing the additional allowance upon the interest of the award as well as upon the award itself" (New York State Urban Dev. Corp. v Goldfeld, 54 AD2d 1099, 1100 [1976], citing Matter of County of Westchester v Baruch, 247 NY 398, 401 [1928]; Matter of Schmieder, 130 Misc 136, 142 [1927]; Matter of Board of Water Supply of City of New York, 75 Misc 150, 151 [1912]; accord In re City of New York, 2003 NY Slip Op 51645U at 6 [it is well settled that an award of attorneys' fees should not be calculated including those portions of an award that represent the interest awarded, since those sums are not obtained through the efforts of counsel, but are self generated by operation of law]). In contrast, however, it has also been held that an award of a contingency fee in the amount of 33% of the difference between the court's award, with accrued interest, and the defendant's advance payment, was proper and reasonable, given the amount of time and labor required, the difficulty of the issues presented, the level of skill required of this matter, the benefit resulting to claimant from the attorney's skill and the results obtained (Carbone v State of New York, 13 Misc 3d 1246A, 2006 NY Slip Op 52364U [2006]; see also In re Edgecombe Road, 128 AppDiv 432, 436 [1908], affd 194 NY 545 [1909] [since petitioner was entitled to one-half of the award, he was entitled to it as of the date when the property was taken, so that he was entitled to interest on it until the same was paid]).

As is also relevant in resolving the instant dispute, it is well settled that in determining the appropriate amount of attorneys' fees to be awarded, it must be recognized that:

"Long and universal tradition in American practice is for attorneys' fees to be determined on the following factors: the time and labor required; the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and the benefit resulting to the client from the services; the customary fee charged for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved. (See, Matter of Freeman, 34 NY2d 1, 9 [1974]; Matter of Siegel, 169 Misc 2d 620, 621 [Sup Ct, Queens County 1996]; see also, Matter of New York City Tr. Auth., 150 Misc 2d 917 [Sup Ct, Queens County 1991]; Matter of New York State Urban Dev. Corp., 183 Misc 2d 900 [Sup Ct, NY County 2000].)"

(Dillon v Marelli, 185 Misc 2d 461, 464-465 [2000])

Discussion

Herein, the court finds that claimant is entitled to recover the full amount of [*9]attorneys' fees sought by the Firm. In so holding, the court recognizes that this matter was extensively litigated from its inception. Most significantly, the above summary of the procedural history reveals that the City refused to make an advance payment as required by the statute (see generally EDPL 301, 303 and 304) and repeatedly fought claimant's attempts to obtain payment. In this regard, claimant was compelled to make a motion seeking to obtain an advance payment because the City claimed that it owned the property, arguing that its claim of ownership could be traced to colonial patents dating back to 1645. The 41 page decision rendered by the court, which rejected the City's claims and found that claimant's ownership of the property could be traced to a colonial patent dating back to 1670, as well as finding the claimant's ownership could be support by numerous alternative theories, clearly reveals the difficult and complex legal issues raised in this proceeding. Thereafter, claimant was forced to make an additional motion seeking to compel the City to make an advance payment and to oppose yet another motion in which the City sought to avoid its obligation to make a payment by forcing claimant to litigate the issue of whether the State held an interest in the property. Since both of these motions were decided in claimant's favor, premised upon the doctrines of collateral estoppel and law of the case, the City's position can also be said to have bordered on frivolous. After tendering an advance payment, the City continued to oppose claimant's efforts to obtain just compensation and ultimately tried the case in reliance upon an appraisal that valued the property at less than one-tenth of the amount awarded to claimant.

The court also notes that claimant did not receive an advance payment until June 2005, almost ten years after title vested in the City and only after the three motions discussed above were decided in claimant's favor. Accordingly, the City cannot, and in fact does not, argue that the Firm should not be entitled to recover 6% of the advance payment, since it is beyond dispute, under the circumstances of this case, that the advance payment was not self-generated by operation of law. Further, when the final award was collected on November 8, 2008, claimant was awarded $9,067,480, plus interest in the amount of $9,885,466.72. The award of interest therefore exceeded the principal of the award by over $800,000 because the City delayed payment by approximately 12 years. Accordingly, the court also finds that the award of attorneys' fees should be calculated upon the amount of interest awarded, since the Firm was deprived of use of its fee, which would have been received years earlier if the City had compensated claimant in a timely fashion. In addition, the court recognizes that the Firm submitted a memorandum of law that convinced this court to award interest, compounded annually, instead of simple interest, so that the interest awarded was similarly not self generated.[FN2] [*10]

Accordingly, in view of the procedural history of this case, where claimant prevailed on every motion seeking to compel payment; claimant ultimately obtained an award that was over $8,000,000 more than the City's offer; and the City delayed in making both an advance payment and a final payment in a timely fashion, the court concludes that the Firm is entitled to recover an additional sum pursuant to EDPL 701, equal to 6% of the total amount received by claimant, including the interest paid thereon, particularly in view of the above cited cases that awarded a contingency fee of up to 33%.

The court also awards claimant the $75,125 billed by Mr. Sciannameo for the preparation of appraisal reports and for his testimony at trial; the $5,545.81 billed by Mr. Bonfilio for the preparation of his report and for his testimony at trial regarding the demapping of the paper streets; and the $44,250 billed by Mr. Ogur for the preparation of the development plans and for his testimony at trial. In so holding, the court notes that the City does not contest the necessity of retaining these experts, nor the reasonableness of the expenses.

The court declines, however, to award the $728.29 that the Firm alleges was expended for computer research. It this regard, it has been held that " computer research is merely a substitute for an attorney's time that is compensable under an application for attorney's fees and is not a separately taxable cost'" (Noghrey v Town of Brookhaven, 17 Misc 3d 1102A, 2007 NY Slip Op 51798U, 7 [2007], quoting United States v Merritt-Meridan Constr., 95 F3d 153, 173 [1996 ], citing BD v DeBuono, 177 FSupp2d 201 [2001]). Similarly, the court declines to award counsel the $1,986.65 that the Firm alleges that it expended in travel expenses, since counsel fails to submit any evidentiary corroboration to justify such an award. In this regard, the court finds that if counsel intended to seek to recover expenses incurred, it was incumbent upon it to retain sufficient billing records to support its demand

The court further finds that Ticor is entitled to recover the attorneys' fees incurred in refuting the City's contention that claimant did not hold title to the property, since claimant succeeded in establishing that it owned the property on numerous theories. In this regard, it is well settled that "[t]he doctrine of subrogation "allows an insurer to stand in the shoes of its insured and seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse"'" (Spectra Audio Research v Chon, 62 AD3d 561, 563 [2009], quoting Duane Reade v Reva Holding, 30 AD3d 229, 232 [2006], quoting Kaf-Kaf v Rodless Decorations, 90 NY2d 654, 660 [1997]). Accordingly, having successfully defended claimant's position in accordance with its title insurance policy, Ticor is subrogated to claimant's rights. [*11]Further, given the complexity of the issues raised by the City's challenge to title, it is evident that if Ticor did not defend the claim, the Firm would have been compelled to trace the title and draft the papers opposing the motion. In view of the number of hours billed by Kirschenbaum, it must be presumed that if the Firm had to perform the legal services rendered by Ticor, it would have sought to increase its fee to compensate for this unanticipated motion practice.

The court therefor concludes that Ticor is entitled to recover reasonable attorneys' fees. The court further finds, however, that on the papers now before it, it cannot determine if Ticor's demand for fees in the amount of $154,900 is reasonable. More specifically, the court notes that this fees includes over 100 hours billed for consultations with the client; at a billing rate of $400 per hour, this increased the cost of legal services provided by more than $40,000. The bills annexed to the moving papers, however, fail to offer any details with regard to why such extensive consultation was needed. In addition, the remaining entries, which bill for research, letters, reviewing documents, etc., without offering any details with regard to services performed, are also lacking in the specificity needed to determine if the amount billed is reasonable. Thus, the amount of reasonable attorneys' fees incurred by Ticor in representing claimant in connection with the City's challenge to its ownership is referred to a Judicial Hearing Officer.

Conclusion

For the above stated reasons, claimant's motion is granted to the extent of awarding an additional allowance in the amount of $1,278,230.53 ($1,280,945.47 - $728.29 - $1,986.65), representing attorneys' fees, appraisal fees, engineering fees, architectural fees and other reasonable expenses incurred. Ticor is awarded an additional allowance for attorneys' fees incurred, the reasonable amount of which shall be determined at a hearing. Pursuant to Article 22 of the Judiciary Law, in accordance with the provisions of Part 122 of the Rules of the Chief Administrator of the Courts (NYCRR Part 122), this issue is assigned to the Judicial Hearing Officer in the JHO Part, to hear and determine if the parties so agree in writing, or to hear and report if they do not agree. The date of the hearing will be fixed by the Clerk of the Part.

The foregoing constitutes the decision and order of the court.

E N T E R

J. S. C. Footnotes

Footnote 1: EDPL 701 provides that:

" 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."

Footnote 2: In so holding, the court also notes that the earlier cases decided pursuant to Condemnation Law § 16 are distinguishable, since that statute provided that the court could allow a defendant to recover "an additional allowance of costs, not exceeding five per centum upon the amount awarded" (see generally Westchester County v Baruch, 247 NY 398, 400 [1928] [emphasis added]). The court's discretion to award an additional allowance pursuant to EDPL 701 is not so limited.