Opinion
# 2018-045-051 Claim No. 124598 Motion No. M-92241
12-19-2018
LEE J. MONTES v. THE STATE OF NEW YORK
Flower, Medalie & Markowitz By: Edward Flower, Esq. Hon. Barbara D. Underwood, Attorney General By: Charles E. Gary, Assistant Attorney General
Synopsis
Motion after trial decision pursuant to EDPL §701 seeking an order awarding claimant an additional allowance in the sum of $81,606.37 for actual and necessary costs, disbursements and expenses, consisting of reasonable attorneys' fees, expert witness fees and disbursements actually incurred by claimant in prosecuting the claim.
Case information
| UID: | 2018-045-051 |
| Claimant(s): | LEE J. MONTES |
| Claimant short name: | MONTES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124598 |
| Motion number(s): | M-92241 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Flower, Medalie & Markowitz By: Edward Flower, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Charles E. Gary, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 19, 2018 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Attached Affidavit of Lee J. Montes, Attached Affidavit of Elinor Brunswick, Attached Affidavit of William Lahti, Attorney's Affirmation with annexed Exhibits A-F, Defendant's Affirmation in Opposition with annexed Exhibits 1-3, Claimant's Reply Affirmation with annexed Exhibit A, Copy of Attorney Client Retainer dated June 12, 2014 and Copy of Attorney Explanatory Letter to Client dated October 2, 2018 with annexed copies of Checks from Defendant.
Claimant, Lee J. Montes, has brought this motion pursuant to Eminent Domain Procedure Law (EDPL) § 701 for an Order granting him an additional allowance in the sum of $81,606.37 for actual and necessary costs, disbursements and expenses, consisting of attorneys' fees, expert witness fees and disbursements actually incurred by claimant in order to achieve just and adequate compensation. Defendant, the State of New York, opposes the motion.
On March 30, 2018, this Court issued a Decision awarding claimant a total of $208,328.00 in damages with interest as stated therein for the partial appropriation of property, as well as a temporary easement on the property, owned by claimant.
Claimant brought this motion pursuant to EDPL § 701 for an additional allowance of $51,487.00 for attorney's fees; $17,800.00 for appraiser's fees; $10,643.78 for engineer's fees; $85.89 for trial related disbursements; and $1,589.70 for a trial transcript.
The original motion seeking $51,487.00 for attorneys fees was made prior to the actual payment being made to claimant and was based on an estimate of when payment would be made. According to claimant's counsel's explanatory letter to his client dated October 2, 2018, the actual fee totaled $41,787.52.
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 $98,000.00. The Court finds that the ultimate award of $208,328.00, which is approximately 112% 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. Claimant is seeking $51,487.00 for attorney's fees. Claimant has submitted a retainer agreement in support of its claim for attorney's fees which provides that counsel shall be entitled to one-third 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 claimant's attorney is reasonable and was incurred to achieve just and adequate compensation. Claimant's counsel supplemented his motion with records showing that the actual attorney fee totaled $41,787.52. Consequently, the Court will award the amount of $41,787.52 as appropriate attorney fees in this matter.
Claimant is also seeking $17,800.00 for appraiser's fees. Claimant's appraiser, Elinor Brunswick, explained that she charged claimant $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. Claimant was 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. The Court finds that the appraisal fees totaling $17,800.00 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $17,800.00 to claimant for expert appraisal costs is warranted.
Additionally, claimant is requesting $10,643.78 for engineer's fees. Claimant has 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 $10,643.78 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $10,643.78 to claimant for expert engineering costs is warranted. (see Matter of Village of Johnson City [Waldo's, Inc.], 277 AD2d 773 [3d Dept 2000]).
Claimant is seeking to recover for disbursements which include $1,589.70 for the trial transcript, $50.00 for the Court of Claims filing fee and $35.89 in federal express charges. Claimant is not entitled to an additional award for the $50.00 Court of Claims filing fee since it was previously recovered by claimant as part of the original judgment entered in this matter. As a result, the Court finds that the disbursements totaling $1,625.59 were reasonable and necessary to achieve just and adequate compensation in this matter. Thus, an award of $1,625.59 to claimant for disbursements is warranted.
Therefore, based on the foregoing, claimant's motion is granted to the extent stated herein. Claimant is awarded the total sum of $71,856.89 ($41,787.52 for attorney's fees; $17,800.00 for expert appraisal costs; $10,643.78 for expert engineer costs and $1,625.59 for 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.
December 19, 2018
New York, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims