We disagree. Pursuant to EDPL 701, it is well settled that a claimant's right to an additional allowance does not accrue until there is either an award, order or judgment in the underlying condemnation proceeding (see, Lee-Hi Fuel Corp. v. State of New York, 179 A.D.2d 494; see also, Pyle v. State of New York, 185 A.D.2d 649). In support of its contention that such award must be made as part of the original proceeding and be incorporated into the final judgment, the State relies upon the Fourth Department's decision in Niagara Mohawk Power Corp. v. Great Bend Aggregrates ([Appeal No. 2] 181 A.D.2d 998).
In any event, defendant's contention that the 1987 amendment to EDPL 701 (see, L 1987, ch 771) should not have been applied retroactively lacks merit because the right to the additional allowance did not accrue until the award was made. The date of the award was subsequent to the effective date of the amendment (see, Hakes v. State of New York, 184 A.D.2d 1035; First Bank Trust Co. v. State of New York, 184 A.D.2d 1034; Thomas v. State of New York, 179 A.D.2d 945; Lee-Hi Fuel Corp. v. State of New York, 179 A.D.2d 494; Matter of New York City Tr. Auth. [Superior Reed Rattan Furniture Co.], 160 A.D.2d 705).
We disagree. The amendment does not create a new remedy; it merely expands a preexisting one (see, Thomas v State of New York, 179 A.D.2d 945 [3d Dept]; Lee-Hi Fuel Corp. v State of New York, 179 A.D.2d 494 [1st Dept]; Matter of New York City Tr. Auth. [Superior Reed Rattan Furniture Co.], 160 A.D.2d 705 [2d Dept]). Moreover, the amended statute is remedial in nature and, in the absence of a clear expression of legislative intent to the contrary, it should be given retroactive construction (McKinney's Cons Laws of NY, Book 1, Statutes § 55; Matter of New York City Tr. Auth. [Superior Reed Rattan Furniture Co.], supra).
At the outset, we reject the State's contention that EDPL 701, as amended in 1987, does not apply in this case (see, First Bank Trust Co. v. State of New York, 184 A.D.2d 1034 [decided herewith]). EDPL 701, as amended, authorizes an additional allowance for certain expenses when the court's compensation award is "substantially in excess" of the amount originally offered by the condemnor (see also, Lee-Hi Fuel Corp. v. State of New York, 179 A.D.2d 494; Matter of New York City Tr. Auth. [Superior Reed Rattan Furniture Co.], 160 A.D.2d 705, 710-711). Here, the State offered $48,600, and the court awarded $68,700, which is 41.4% in excess of the condemnor's proof.
The Court of Claims determined that claimants were entitled to $255,000. Because the trial court's award was substantially in excess of the prelitigation offer (see, EDPL 701; Matter of New York City Tr. Auth. [Superior Reed Rattan Furniture Co.], 160 A.D.2d 705, 709-710; see also, Lee-Hi Fuel Corp. v. State of New York, 179 A.D.2d 494), and the additional award was necessary to achieve just and adequate compensation (cf., Frisbro Enters. v. State of New York, 145 Misc.2d 397, 398-399; Matter of New York City Tr. Auth. [Gun Hill Bus Depot], 142 Misc.2d 629, 634-635), the Court of Claims properly exercised its discretion in awarding claimants an additional allowance pursuant to EDPL 701. In addition, the Court of Claims properly applied the amendment to EDPL 701 (see, Matter of New York City Tr. Auth. [Superior Reed Rattan Furniture Co.], supra, at 707-709; see also, Lee-Hi Fuel Corp. v. State of New York, supra; Matter of City of New York [Long Is. Sound Realty Co.], 160 A.D.2d 696, 697; Town of Esopus v. Gordon, 143 Misc.2d 193, 194-195, affd 162 A.D.2d 829, lv denied 77 N.Y.2d 801). Given that EDPL former 701 already provided for the recovery of certain litigation expenses, the amended version did not establish a new right. Rather, it merely broadened the existing remedy and, accordingly, may be considered a re
In the instant case, if the prevesting offer of $2,200,000 is considered "initial offers" for comparison purposes against the award of $5,750,108, then the resulting excess of $3,400,000 ±, more than a 200% increase, would clearly be "substantial" and would merit consideration for additional EDPL 701 compensation. On the other hand, if, as condemnor contends, the postvesting offers/advance payments totaling $4,800,000 are an appropriate "offer" basis for excess comparison, then the resulting difference of $950,000 between the advance payments and final award would not be sufficiently "substantial" under the facts herein to warrant condemnee's $883,073 claim for costs and reimbursement. Though EDPL 701 essentially places upon the condemnor "the burden of properly appraising the property" (Lee-Hi Fuel Corp. v State of New York, 179 AD2d 494, 495)—this under threat of an award of additional compensation—condemnor's argument is that if no consideration be given to postvesting offers/payments, there would be little incentive—other than saving interest—for condemnor to continue to "properly appraise" the property postvesting and thereby generate increased payments. Indeed, such additional payments would have the effect of disclosing condemnor's value position prior to appraisal exchange—obviously a strategic advantage to claimant's counsel and appraisers.
On the other hand, if, as condemnor contends, the post-vesting offers/advance payments totaling $4,800,000 are an appropriate "offer" basis for excess comparison, then the resulting difference of $950,000 between the advance payments and final award, would not be sufficiently "substantial" under the facts herein to warrant condemnee's $883,073 claim for costs and reimbursement. Though § 701 essentially places upon the condemnor "the burden of properly appraising the property" (Lee Hi Fuel Corp. v. State of N.Y. 179 A.D.2d 494, 495) — this under threat of an award of additional compensation-Condemnor's argument is that if no consideration be given to post-vesting offers/payments, there would be little incentive-other than saving interest-for Condemnor's to continue to "properly appraise" the property post vesting and thereby generate increased payments. Indeed, such additional payments would have the effect of disclosing condemnor's value position prior to appraisal exchange-obviously a strategic advantage to claimants' counsel and appraisers.