Opinion
November 13, 1995
Appeal from the Supreme Court, Westchester County (Palella, J.).
Ordered that the judgment, as amended, is modified by adding thereto a decretal paragraph awarding the condemnees additional allowances pursuant to EDPL 701 for (1) an appraisal fee in the sum of $26,750, (2) an engineering fee in the sum of $16,097.32, and (3) attorneys' fees in the sum of $315,533.16; as so modified, the judgment, as amended, is affirmed insofar as appealed and cross-appealed from; and it is further,
Ordered that the order entered December 23, 1993, is modified by deleting the provision thereof which denied the branch of the condemnees' motion which was for additional allowances pursuant to EDPL 701 and substituting therefor a provision granting that branch of the motion; as so modified the order is affirmed; and it is further,
Ordered that the respondent-appellant is awarded one bill of costs.
The award was properly based upon the floor-area-ratio methodology since the highest and best use of the property was for an office building under the applicable zoning laws and there was a reasonable probability of obtaining necessary approvals or variances (see, Matter of Town of Islip [Mascioli], 49 N.Y.2d 354, 360; Matter of Shorefront High School [Rudnick], 25 N.Y.2d 146, 149, remittitur amended 26 N.Y.2d 748; St. Agnes Cemetery v State of New York, 3 N.Y.2d 37, 41; Chase Manhattan Bank v State of New York, 103 A.D.2d 211, 216-217).
In light of the condemnor's initial offer of $2,000,000, which was $455,000 less than the appraisal it submitted at trial and 132% less than the ultimate award of $4,640,000, the award was substantially in excess of the condemnor's proof and an allowance for reasonable attorneys', appraisal, and engineering fees is necessary for the condemnee to receive just and adequate compensation in this case (see, EDPL 701; Hakes v State of New York, 81 N.Y.2d 392, 397-398; Matter of Williamsburgh II Urban Renewal Area, 208 A.D.2d 548; Matter of E.D.J. Quality Realty Corp. v Village of Massapequa Park, 204 A.D.2d 321; Matter of Hoffman v Town of Malta, 189 A.D.2d 968, 969; Scuderi v State of New York, 184 A.D.2d 1073). Accordingly, we modify the judgment, as amended, and the order entered December 23, 1993, to award the condemnee the entire actual amount of appraisal and engineering fees, which we find to be reasonable. As to the attorneys' fees as calculated pursuant to the sliding-scale contingency retainer agreement, we find one half of the amount requested to be reasonable.
We have considered all of the parties remaining contentions and find them to be without merit. Sullivan, J.P., Altman, Hart and Friedmann, JJ., concur.