e, with respect to the award of punitive damages, that the statutory amendment, which was enacted in July 1991 and declared to be effective "immediately" (L 1991, ch 368, § 7), was appropriately applied retroactively to this complaint, which was filed in January 1991 and stems from acts of discrimination occurring in 1989 and 1990. It is well established that "[r]emedial statutes constitute an exception to the general rule that statutes are not to be given a retroactive operation" (McKinney's Cons Laws of NY, Book 1, Statutes § 54 [a]). Thus, in the absence of language indicating a contrary intent, "a remedial statute is ordinarily applied to procedural steps in pending actions, and is given retrospective effect in so far as the statute provides a change in the form of a remedy or provides a new remedy for an existing wrong" (Comment, McKinney's Cons Laws of NY, Book 1, Statutes § 54, citing Shielcrawt v. Moffett, 294 N.Y. 180; see also, Snyder v. Newcomb Oil Co., 194 A.D.2d 53, 60; Thomas v. State of New York, 179 A.D.2d 945, 946). (Executive Law § 298 Proceeding Transferred by Order of Supreme Court, Erie County, Mahoney, J.) PRESENT: GREEN, J. P., HAYES, PIGOTT, JR., AND SCUDDER, JJ.

laim for an additional allowance pursuant to EDPL 701, but rather a claim for a higher rate of interest which admittedly should have been raised in the original condemnation proceeding, we find the ruling therein not determinative of the issue presented here. Moreover, the Court in Niagara Mohawk Power Corp. v. Great Bend Aggregates (supra, at 999) further noted that since neither an action nor a special proceeding was pending before Supreme Court at the time the application was made, that court did not have jurisdiction to entertain an action commenced by notice of motion. Although we have not squarely addressed whether an application made pursuant to EDPL 701 must be made prior to execution of a satisfaction of judgment, it is clear that we have heretofore entertained appeals from additional judgments awarded by the Court of Claims pursuant to EDPL 701 after the entry of a judgment without questioning such court's jurisdiction (see, e.g., Walsh v. State of New York, 180 A.D.2d 290; Thomas v. State of New York, 179 A.D.2d 945). In reviewing the legislative history of EDPL 701, we note the absence of guidance therein as to the procedure contemplated by the drafters when seeking such an award.

In fact, claimant's counsel averred that the typical contingent fee charged by attorneys in similar cases is 33 1/3% of the final amount, not 25% as in this case. Unquestionably, the ultimate award to claimant by Supreme Court was substantially greater than respondent's initial offer (see, Thomas v. State of New York, 179 A.D.2d 945, 946). Further, the value assigned to the property by claimant's expert was within 21% of the actual award and, therefore, it cannot be said that claimant incurred his expenses in an effort to obtain an award far greater than the actual award (see, Matter of New York City Tr. Auth., supra, at 921-922).

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).

The State's remaining points do not require extended discussion. Our previous holding in Thomas v. State of New York ( 179 A.D.2d 945) forecloses the State's contention that granting the additional allowance herein constitutes an impermissible retroactive application of the 1987 amendment to EDPL 701 (see also, Matter of New York City Tr. Auth. [Superior Reed Rattan Furniture Co.], 160 A.D.2d 705, 709; Matter of City of New York [Long Is. Sound Realty Co.], 160 A.D.2d 696, 697). Nor are we persuaded by the State's final argument that the balance of discretionary factors do not favor the award of an additional allowance in this case. The Court of Claims could reasonably conclude that because of the enormous discrepancy between the State's offer and the fair market value of claimants' property as ultimately found by the court, there was indeed a necessity for claimants to incur their litigation expenses in order to achieve just and adequate compensation.

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).

We further note that, under EDPL 701, the determination of substantiality must be based only on a comparison of the award and the offer, not the value of the parcel as a whole. In order to qualify for an additional allowance, claimant must also show that the expenses claimed were necessarily incurred to achieve just and adequate compensation (see also, Thomas v. State of New York, 179 A.D.2d 945; Matter of New York City Tr. Auth. [Superior Reed Rattan Furniture Co., supra, at 709). In this case, the Court of Claims necessarily found that at least some of the expenses incurred by claimant were necessary to achieve just and adequate compensation because, without claimant's efforts, he would not have been compensated for the consequential damages found by the court.