Opinion
# 2011-031-047 Claim No. 111092 Motion No. M-79799
09-29-2011
BERG INVESTORS, LLC v. THE STATE OF NEW YORK
Synopsis
After appropriation award substantially in excess of Defendant's offer, Claimant is awarded $93,889.40 in its application for reimbursement of expenses and fees pursuant to EDPL § 701. Case information
UID: 2011-031-047 Claimant(s): BERG INVESTORS, LLC Claimant short name: BERG INVESTORS, LLC Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111092 Motion number(s): M-79799 Cross-motion number(s): Judge: RENÉE FORGENSI MINARIK GILBERT STINZIANO HEINTZ & SMITH, P.C. Claimant's attorney: BY: KEVIN G. ROE, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: BY: REYNOLDS E. HAHN, ESQ. Assistant Attorney General Third-party defendant's attorney: Signature date: September 29, 2011 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers, numbered 1 to 5, were read on motion by Claimant to recover expenses and fees pursuant to EDPL § 701:
1. Claimant's Notice of Motion, filed April 11, 2011;
2. Affirmation of Kevin G. Roe, Esq., dated April 7, 2011, with exhibits;
3. Affidavit of Kenneth V. Gardner II, sworn to March 29, 2011, with exhibit;
4. Affidavit of Neil Goldberg, sworn to March 28, 2011;
5. Opposing Affirmation of Reynolds E. Hahn, Esq., dated May 9, 2010 [sic];
6. Affidavit of Kenneth V. Gardner, II, sworn to June 10, 2011.
This appropriation claim was tried before me on January 26 and 27, 2009. After trial, in a written decision filed on March 29, 2010, I awarded Claimant the sum of $342,000.00. That award was substantially in excess of the $200,650.00 offer of settlement made by Defendant in this matter. Now, Claimant's counsel brings this motion, pursuant to Eminent Domain Procedure Law (EDPL) § 701, to recover expenses and fees associated with prosecuting its appropriation claim against the State.
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 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).
As set forth by Claimant's counsel, the award of $342,000.00 was 70% higher than Defendant's $200,650.00 offer of settlement. Accordingly, Claimant argues that the award was clearly substantially in excess of the Defendant's offer, and requests recovery of its costs and expenses. Claimant seeks a total of $93,889.40, which is comprised of: attorney fees ($73,947.96); costs and disbursements ($2,950.92); and expert appraiser fees ($16,990.52). Claimant's submission contains the affirmation of Kevin G. Roe, Esq., which described the normal contingency retainer agreement and details the legal work performed on Claimant's behalf, as well as the costs and disbursements charged to Claimant. The submission also contains the affidavit of Claimant's expert, Mr. Kenneth V. Gardner II. Mr. Gardner details the work performed and the basis for his expert fees.
Defendant does not dispute that the amount awarded substantially exceeded the offer made by Defendant, or that an additional allowance under EDPL § 701 is justified. Defendant opposes Claimant's application with regard to only one aspect. Defendant's only objection to the documentation of fees and expenses submitted by Claimant relates to the work done outside of preparing the appraisal, by Claimant's expert Mr. Gardner. According to Defendant, because the Court credited the testimony of Claimant's employee, Mr. Scott Milnamow, concerning the effects of the loss of parking, Claimant's expert's preparation and testimony in this regard were unnecessary.
Although Mr. Milnamow testified concerning how these reduced lanes and parking spaces affected the actual use of the property, he provided only the "color commentary," if you will. The foundation upon which Mr. Milnamow's testimony relied, what made it important, was the testimony of Claimant's expert as to how this affected the value of the property. There is no doubt that the value of the loss of parking was a pivotal issue in the trial, which required the testimony of both Claimant and Claimant's expert. I therefore find that Claimant's expenses and fees were reasonable and necessary.
Accordingly, it is hereby
ORDERED, that Claimant's motion is GRANTED. Claimant is awarded the total sum of $93,889.40 ($73,947.96 for attorney fees; $2,950.92 for costs and disbursements; and $16,990.52 for expert appraiser fees), pursuant to EDPL § 701. Let judgment be entered accordingly.
September 29, 2011
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims