The Appellate Division, Second Department affirmed an award of $799,627 for reimbursement of legal and appraisal fees pursuant to Section 701 of the Eminent Domain Procedure Law. The award followed a trial where the City of New York valued the Staten Island vacant land condemned at $611,000. Goldstein, Rikon, Rikon & Levi, P.C. representing the claimant, Yeshivas Ch’San Sofer, obtained $3,165,513 after trial. Matter of Oakwood Beach Bluebelt (Yeshivas Ch’San Sofer), ___ AD3d ___ (Sept. 13, 2023).
Eminent Domain Procedure Law (EDPL), § 701, was amended to provide that when an award in a condemnation proceeding was “substantially” in excess of the condemnor’s proof on the trial, the trial court, in its discretion, if required to afford a claimant “just compensation,” could award a claimant an additional allowance of his litigation expenses, including attorneys’, engineering and appraiser’s fees.
Specifically, EDPL §701 states:
“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”
Initially one must consider whether the court’ award “is substantially in excess of the amount of the condemnor’s proof.
The Second Department in Malin v State of New York, 103 AD2d 899 (2d Dept, 1992) held that the claimant need only show “more than a modest increase in value.” In the Malin case, that increase was a 79 percent increase in value over and above the State’s initial offer.
One aspect of EDPL § 701 has been well established. The standard for determining both “substantially in excess” and the computation of the contingency legal fee is the initial advance payment made under EDPL §303. The base from which the Court determines whether the claimant achieved an award “substantially in excess” is not based on the condemnor’s proof at trial. Rather, the basis utilized is the initial advance payment. General Crushed Stone v State of New York, 93 NY2d 23 (1999); First Bank & Trust Co. of Coming v State, 184 AD2d 1034 (4th Dept, 1992); Lee-Hi Fuel v State, 179 AD2d 494 (1st Dept, 1992). This is logical and consistent with the statutory intent. Only by having retained counsel and hiring experts could a claimant reach trial so as to realize the award. Matter of New York City Transit Authority, 160 AD2d 705 (2d Dept, 1990) (“…the only interpretation which would fulfill the legislative intent of the amendment, and the policy of the EDPL, is that the city’s initial offer…be utilized for comparison purposes).”
Ashley B. Levi, Esq. represented claimant-respondent in the appeal.