Braunstein v State of New York

[*1] Braunstein v State of New York 2005 NY Slip Op 52286(U) Decided on December 16, 2005 Ct Cl Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 16, 2005
Ct Cl

Bernard Braunstein and T&R Realty Corporation, Claimants,

against

State of New York, Defendant.



106681



For Claimants:

Bond, Schoeneck & King, PLLC

By:H. Dean Heberlig, Jr., Esq., of counsel

For Defendant:

Hon. Eliot Spitzer, Attorney General

By:Joseph F. Romani, Assistant Attorney General, of counsel

Ferris D. Lebous, J.

Claimants move for an additional allowance for attorney's fees and appraisal expenses, as well as disbursements pursuant to EDPL 701. The State of New York (hereinafter "State") opposes the motion.

On October 13, 1999, pursuant to the EDPL and Highway Law § 30, the State appropriated premises owned by claimant T&R Realty Corporation situate in the Hamlet of Lowman, Town of Ashland, County of Chemung, State of New York. An abbreviated trial was held jointly with Claim No. 106680 in the Binghamton District on May 11, 2005.

Pursuant to EDPL 304, the State made an offer of $166,700. After trial, this court awarded claimants damages for the taking in the total amount of $560,000. (Braunstein v State of New York, Ct Cl, October 3, 2005, Lebous, J., Claim No. 106681). [*2]

Claimants now seek an additional allowance pursuant to EDPL 701 for appraisal expenses, attorney's fees and disbursements. The State opposes the application to the extent the total amount requested exceeds the parties agreement reached before trial. It is well-settled that EDPL 701 provides a means for a claimant/condemnee to apply for costs associated with the prosecution of an appropriation action, including reasonable attorney's fees and appraisal expenses, when "[t]he 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." (EDPL 701). The policy underlying this statute is meant to "[p]rovide a means of mitigating the financial damage wrought by the condemnor's low, original offer." (General Crushed Stone Co. v State of New York, 93 NY2d 23, 27). The court must assess whether: (1) the award is substantially more than what was initially offered by the condemnor; and (2) the expenses were incurred to achieve just and adequate compensation. (EDPL 701; Matter of Vil. of Johnson City [Waldo's Inc.], 277 AD2d 773, 774). The additional allowance is not mandatory and the determinations are left to the court's discretion.

First, the court must determine whether the award was substantially more than the initial offer. In determining whether the difference is substantial, the court must look to the percentage difference, as well as the dollar amount. Here, the discrepancy between the State's initial offer ($166,700) and the total award ($560,000) was $393,300. The court finds the discrepancy of nearly 336% substantial within the meaning of EDPL 701.

Next, the court considers whether the fees were incurred to achieve just and adequate compensation. (EDPL 701). Claimants seek to recoup the expense of appraiser Kenneth L. Golub, who testified briefly at trial, as well as attorney's fees and disbursements.

A.Real Estate Appraiser

Claimants seek to recover the fee paid to appraiser, Kenneth L. Golub, in the amount of $8,940.50.[FN1] It is clear that the use of expert appraisal proof was necessary to achieve just and adequate compensation. The court finds that claimants are entitled to recover $8,940.50 as and for the appraisal fees of Kenneth L. Golub.

B.Attorney's Fees

The motion papers establish to the court's satisfaction that the terms of the retainer agreement between claimants and counsel provided for attorney fees of 30% of the amount recovered in excess of the State's initial offer of $166,700, including interest. A contingency fee arrangement based upon the final amount awarded, including interest, is appropriate as a matter of law. (Matter of Hoffman v Town of Malta, 189 AD2d 968). [*3]

Claimants request a total of $117,990.00 plus 30% of interest awarded in attorney's fees. The court finds that attorney's fees in the amount of $60,585.79 is reasonable and was incurred to achieve just and adequate compensation pursuant to EDPL 701 and is in line with the parties agreement reached prior to trial. Thus, the court awards claimants an additional allowance for attorney's fees of $60,585.79.

C.Disbursements

Claimants aver that total disbursements of $1,337.95 covered this claim, as well as Claim No. 106680. Claimants apportion the disbursements as $668.98 to this claim and $668.97 to Claim No. 106680. The State does not dispute the foregoing apportionment and, as such, the court accepts the disbursements as $668.98 for this claim.

In sum, based on the foregoing, claimant is awarded the total sum of $70,195.27 for actual, reasonable and necessary expenses as follows:

Appraiser Golub:$ 8,940.50

Attorney's fees:$ 60,585.79

Disbursements:$ 668.98

Total:$ 70,195.27

The Clerk of the Court is directed to enter judgment accordingly.

Binghamton, New York FERRIS D. LEBOUS

December 16, 2005Judge of the Court of Claims

The court has considered the following papers in connection with this motion:

DECISION, Lebous, J., Claim No. 106681, filed October 31, 2005.

Notice of Motion No. M-70940, dated November 10, 2005, filed November 15, 2005.

Affidavit of Kenneth L. Golub, in support of motion, sworn to November 7, 2005.

Affidavit of H. Dean Heberlig, Jr., Esq., in support of motion, sworn to November 10, 2005 with attached exhibits.

Affidavit of Edwin Braunstein in support of motion, sworn to November 8, 2005 with attached exhibits.

Affirmation of Joseph F. Romani, AAG, in response to motion, dated November 21, 2005 and filed November 23, 2005. Footnotes

Footnote 1:Mr. Golub's total bill of $17,881.00 covered his services on both this claim and Claim No. 106680. Mr. Golub apportions his bill as 50% to each claim. The State does not dispute the apportionment and, as such, the court accepts the equal apportionment of Mr. Golub's total bill of 50% between this claim and Claim No. 106680.