ADDITIONAL CASES In the Matter of the City of New York relative to acquiring title in fee simple absolute in certain New Creek Bluebelt, Phase 3 within an area generally bounded by Hylan Boulevard on the West, Slater Boulevard on the North, Olympia Boulevard on the East and Hunter Avenue on the South, in the Borough of Staten Island, City and State of New York. DECISION ORDER and JUDGMENT The Condemnor CITY OF NEW YORK (“the CITY”) has moved pursuant to Eminent Domain Procedure Law (“EDPL”) section 304(H) for a judgment awarding the CITY the difference between the advanced payment made to the Claimant and the final value of the property determined by the Appellate Division. Now upon reading the Notice of Motion of Corporation Counsel, attorneys for the CITY, 100 Church Street New York, New York, by Deborah R. Kerzhner Esq., dated February 5, 2019, the Affirmation in Support, of Deborah R Kerzhner Esq., dated February 5, 2019, and the exhibits annexed thereto; the Notice of Cross-Motion of Goldstein, Rikon, Rikon, and Houghton, PC, 381 Park Avenue South New York, New York, attorneys for Claimant, by Jonathan Houghton Esq., dated May 2, 2019, the Affirmation of Jonathan Houghton Esq., dated May 2, 2019, and the exhibits annexed thereto; the Reply Affirmation of Deborah R. Kerzhner, Esq. dated November 21, 2019, and the exhibits annexed thereto; the Sur-Reply Affirmation of Jonathan Houghton Esq., dated December 23 2019; the Affirmation in Reply to Sur-Reply of Deborah R Kerzhner Esq., dated January 29, 2020 and the exhibit annexed thereto; and after argument of counsel and due deliberation thereon the CITY’s motion is granted for the reasons set forth below. The Claimant’s cross-motion for discovery of the CITY’s pre-vesting appraisal was previously decided separately by decision dated August 7, 2019. The underlying action is a condemnation proceeding which determined the just compensation to be awarded to Claimant, STATEN ISLAND LAND CORP., for the taking of the subject property, consisting of wetlands located on Staten Island. The Condemnor CITY took title to the property on November 3, 2006 (the vesting date). On or about April 1, 2009 the CITY made available advance payments of $2,575,700 plus interest from the date of vesting. The CITY subsequently submitted a rebuttal trial appraisal which valued the property at $1,360,000. After a non-jury trial this Court awarded Claimant $3,500,000 as the value of the property taken. On appeal the Appellate Division modified the order and reduced the award to $1,625,688. The CITY now moves for a judgment in the sum of $950,012 representing the difference between the final award of $1,625,688 and the advance payment of $2,575,700, plus appropriate interest. Section 304(H) of the Eminent Domain Procedure Law provides: When an advance payment to a condemnee made pursuant to this section by the condemnor exceeds the award of the court for that property, the court shall, on motion, enter judgment in favor of the condemnor for the amount of such excess and appropriate interest. Such motion shall be made on notice served within thirty days after delivery to the condemnor of the decision of the court making the award. The CITY asserts that awarding judgment is not discretionary as section 304(H) specifies that the court shall enter judgment for that part of the advance payment that exceeded the award of the court. Claimant’s position Claimant opposes the motion and argues that section 304(H) is in conflict with two other sections of Article 3 of the EDPL, specifically section 304(A) and section 304 (F). Claimant argues that section 304(A) requires the advance payment to be 100 percent of a condemnor’s highest approved appraisal and that it is improper for a condemnor to submit an appraisal for trial that is lower than the appraisal which was the basis for the advance payment. Claimant argues that the purpose of sections 301-304(A) is to ensure that a condemnor offers a condemnee the full value of the property rather than a lower amount. Claimant argues that to require a condemnee to pay back a portion of the advance payment in the event the final court valuation is lower, undermines the purpose of the advance payment, which is to enable a condemnee to secure replacement property while the value of the property is being litigated. Claimant states that both the exchange of trial appraisals and the final determination of value routinely occur long after the advance payment is made, and that in this case the appraisal was exchanged and the final valuation occurred the several years after the advance payment. Claimant argues that a condemnee will not know for several years whether the advance payment could be subject to recoupment so they cannot use the advance payment to secure replacement property or if they do they will face significant hardship if they are forced to sell replacement property they did purchase in order to pay a judgment pursuant to section 304(H). Claimant contends that section 304(H) must be read together with the rest of Article 3 of the EDPL. Claimant argues that for section 304(H) to be consistent with sections 301 through 304(A), it must be read to mean that where a condemnor exchanges a trial appraisal that is lower than the advance payment, a condemnee must only pay back the difference between to trial appraisal and the final valuation, rather than the difference between the advance payment and the final valuation. Claimant cites the reports of State Commission on Eminent Domain, which was involved in drafting the EDPL, as evidence that the legislature’s intent was that the offer and advance payment were to be a floor for compensation and that a condemnor should not be allowed to use one appraisal as the basis of the offer, and a lower appraisal for trial. Claimant states that one of the principal goals of the Commission was to remedy what it found to a practice of some condemnors to offer condemnees far less than the full value of their property. Claimant states that the Commission cited a study published in the Columbia Law Review that examined condemnation settlements in Nassau County which found that the county routinely offered owners less than the full value of their property and that this resulted in a pattern where less sophisticated, unrepresented owners did not receive just compensation. (Columbia Law Review Vol 67, No 3, pp 430-458 at p 457 [March 1967].) Claimant argues that the requirement of section 304(A) that a condemnor offer 100 percent of the highest appraisal was designed to remedy this problem. Claimant further argues that Commission’s reports evidence that the intent of the legislature in enacting of section 303 was to require a “one offer” system and cites the following passages from the Commission’s 1973 and 1974 Reports: “As stated in the Commission 1971 Report, investigation of the area of offer and negotiation all too often leads to the conclusion that the offer and the entire negotiating procedure is unfair. The primary purpose of Article 3 is to eliminate the causes leading to such impressions. Most agencies are turning to what has been defined as the “one offer” system, that is, the agency will have an appraisal made of the damages sustained which establishes the amount of damages, and will offer this full amount to the property owner… The EDPA [title of the proposed statute that became the EDPL] grants statutory recognition to the “one offer” system by mandating its adoption.” (1973 Report of the State Commission on Eminent Domain p16., 1974 Report of the State Commission on Eminent Domain p25.) Claimant also argues that the fact that no provision to recoup part of an advance payment was included in any of the proposed versions of the legislation, and was added to the final bill without comment, indicates that the legislature did not contemplate that a condemnor could decrease its offer. Lastly, Claimant argues that section 304(H) is unconstitutional as applied, because it results in a condemnee receiving less than just compensation. Claimant asserts three ways in which this can occur. First, where a condemnee has purchased property to replace the property condemned, the transactional costs involved in selling the replacement property to pay the recoupment will result in the condemnee receiving less than the final adjudicated value of the property. Claimant argues that it is unfair for a condemnee to have to bear these transactional costs because of an error by a condemnor in making its offer. Second, to the extent a condemnee has to pay interest on the excess amount of an advance payment and in fact has not earned interest equal to the interest awarded, then they would receive less that the judicially determined value of the property. Third, where a condemnee cannot purchase replacement property because of the possibility of having to pay back part of the advance payment and thus cannot qualify for the tax benefits of 1033 of the Internal Revenue Code, or invest in a Federally designated Opportunity Zone, they are denied just compensation. CITY’s position In response the CITY argues, that section 304(H) is clear and unambiguous on its face so that reference to other sections of Article 3 is unnecessary. The CITY argues that because section 304(H) is clear and unambiguous there is no need to look to legislative history to interpret the statute and that legislative history should not be used to change the plain meaning of the statute. The CITY argues that text of the statute is the clearest indicator of legislative intent. The CITY notes that while the State Commission on Eminent Domain never proposed a provision to allow a condemnor to recoup advance payments that exceeded a final award, section 304(H) was added by the legislature itself, which is the clearest indication of legislative intent. The CITY argues that it is the intent of the legislature, not the intent of the State Commission that governs statutory interpretation. The CITY states that recoupment of excess advance payments was part of condemnation law prior to the EDPL and that it was common practice for condemnors to include terms in their advance payment letters to provide for recoupment. The CITY asserts that the legislature added section 304(H) to the statute in response to the decision in the case of In re Nassau County (William Cullen Bryant Park Preserve), 87 Misc2d 1004, 386 N.Y.S.2d 918 (Nassau Cty 1976), in which the court declined to enforce an agreement to recoup an excess portion of an advance payment on the grounds that the applicable statute did not require recoupment. The CITY notes that the case was decided in 1976, after the final State Commission report and one year before the final adoption of the EDPL. The CITY argues that any alleged inconsistencies among the purposes of sections 301-304(A), 304(F) and 304(H) are a matter for the legislature not court to resolve. The CITY further argues that Claimant’s position, that section 304(H) be read to require a condemnee to pay back the difference between the final judicial valuation and the revised offer, rather than the advance payment, would render section 304(H) meaningless and would result in a condemnor having to pay more than the judicially determined value of the property. The CITY also argues that Claimant’s proposed interpretation ignores long term precedent where the courts have consistently awarded the difference between the advance payment and the final award. The City argues that section 304(F), which allows a condemnor to revise on offer to correct an error, applies only to the offer not to the advance payment, and that once a condemnee accepts an offer as an advance payment then a condemnor can submit a lower appraisal at trial, for any reason, not solely to correct an error or miscalculation. The CITY argues that in this case, it did not revise its offer within the meaning of section 304(F) but submitted a different trial appraisal and that a trial appraisal is not governed by section 304(F). The CITY also points out that no reported case regarding section 304(H) looked to the reasons why the trial appraisal was lower than the advance payment, and that nothing in the language of section 304(H) makes an award for the excess advance payment contingent on a condemnor having complied with section 304(F). The CITY argues, that there is no conflict between the requirement of section 304(A) that the offer by 100 percent of the appraised value and section 304(H), because where a condemnee accepts an offer as an advance payment, they assume the risk that the value after trial may be less than the advance payment and they will be liable for the difference. The CITY also argues that even assuming section 304(F) applied to a trial appraisal served after an advance payment was made, any objection to the CITY exchanging a lower trial appraisal should have been made at or about the time it was exchanged. The CITY argues that the fact that the CITY exchanged a lower appraisal for trial is immaterial in this case because the parties entered into a stipulation as to the regulated and unregulated values of the property and the only issue that was tried was what increment to apply to the unregulated value to account for the probability of a successful constitutional challenge to the wetlands regulations. The CITY also argues that section 304(H) is not unconstitutional because neither the transactional costs associated with paying an excess judgment nor the ability to take advantage of tax benefits, such as those provided in IRS code section 1033, are part of just compensation, but are incidents of litigation. Statutory interpretation Section 304(H) must be read together with the rest of Article 3 of the EDPL because it is in those other sections that the requirements for an offer and advance payment are set forth. Article 3 can only be understood in the context of New York being a quick take state. A quick take state is one in which a condemning authority can take title to a property before paying for it and before the amount which it must pay the condemnee as just compensation is determined. This is as opposed to a slow take state where the amount of compensation is established before a condemning authority takes title. Significantly, several years can elapse between the date of vesting and the time compensation for the property is fixed. In this case it has been over 11 years from the date of vesting until the final determination of the value of the property. Article 3 of the EDPL establishes the requirement that a condemnor must make an offer of compensation for the property before the value of the property is determined. Section 301 requires that: “The condemnor, at all stages prior to or subsequent to an acquisition by eminent domain of real property necessary for a proposed public project shall make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement.” Section 302 requires that prior to acquisition, a condemnor have the property it seeks to condemn appraised and authorizes the condemnor to inspect the property prior to acquisition for the purpose of preparing the appraisal. Section 303 requires a condemnor to make an offer to purchase the property at 100 percent of the value of the property, which cannot be less than the condemnor’s highest approved appraisal. It further provides that the condemnor must make the offer prior to acquiring the property where practicable. Section 304 contains several subdivisions which govern the acceptance of the offer and the making of an advance payment. Subdivision (A) of section 304 provides that a condemnee may accept the offer either as full payment or as an advance payment, and that if a condemnee accepts the offer as an advance payment it shall not prejudice their right to seek further compensation and that the advance payment may not be conditioned on waving any other right. Section 304(F) permits a condemnor to revise an offer but only to correct an error or miscalculation. Section 304(H) provides that where the advance payment made exceeds the award of the court a condemnor shall be given a judgment for the difference. The fact that a condemnor can take a property before the value of the property is determined is the reason the legislature required an advance payment. A principal purpose of requiring an advance payment is to enable a condemnee to purchase a property to replace the property that was taken from them while awaiting determination of the value of the property. (Matter of City of New York (New Creek Bluebelt Phase 3), 25 Misc3d 288, 887 NYS2d 776 [Su Ct Kings Cty 2009]; Matter of City of New York (South Beach Bluebelt), 23 Misc.3d 1133(A), 889 N.Y.S.2d 881 [Su Ct Kings Cty 2009]; Matter of Vill of Port Chester, 5 Misc3d 1031(A), 799 NYS2d 164 [Su Ct Westchester Cty 2004].) An offer pursuant to Article 3 differs from an offer of settlement in an ordinary action in significant ways. “A condemnation proceeding is not a private litigation. There is a constitutional mandate upon the court to give just and fair compensation for any property taken. This means “just” to the claimant and “just” to the people who are required to pay for it. The rule is abundantly clear that property must be appraised at its highest and best use and paid for accordingly.”(Yaphank Development Co. v. County of Suffolk, 203 AD2d 280, 609 NYS2d 346 [2nd Dept 1994]; Frank Micali Cadillac-Oldsmobile v. State of New York, 104 A.D.2d 477, 479 N.Y.S.2d 77 [2nd dept 1984]; Matter of County of Nassau (Lido Boulevard), 43 AD2d 45, 349 NYS2d 422 [2nd Dept 1973].) An Article 3 offer must be based on an appraisal and must be 100 percent of the appraised value. The offer cannot be based on an estimate or preliminary valuation. (Matter of the City of New York (South Beach Bluebelt Phase I) 27 Misc.3d 1213(A), 910 N.Y.S.2d 404 [Su Ct Kings Cty 2010].) A condemnor is allowed to inspect the property before vesting in order to enable them to prepare a full and complete appraisal. (EDPL section 302) An offer under the EDPL also differs from an offer in an ordinary action in that a condemnee may accept the offer as full settlement of their claim or as an advanced payment and pursue a claim for additional compensation. Further, the advance payment of the offer is a statutory prerequisite to a condemnor getting possession of the condemned property pursuant to section 405 of the EDPL. An additional difference is that an offer pursuant to Article 3 can only be revised to correct for error or miscalculation. Key to understanding the dispute herein is that the potential of an advance payment exceeding the final determination of value only occurs, as a practical matter, where a condemnor submits a trial appraisal that is lower than the appraisal on which the advance payment was based. The requirement of 304(H) that a condemnee pay back that part of an advance payment that exceeds a final award conflicts with a principal purpose of section 304(A) in providing the condemnee get an advance payment. Where a condemnor may lower their appraisal after making an advance payment, in some cases years after, then a condemnee cannot safely use the advance payment to purchase replacement property. While various sections of article 3 of the EDPL work at cross purposes, the conflicts between the purposes of the various sections must be resolved by the legislature not the court. However, the Court must still interpret and apply Article 3 in a manner that does not render any of its sections meaningless or produce an irrational result. A statute must be construed as a whole and all sections must be read and considered together. (Frank v. Meadowlakes Development Corp., 6 NY3d 687, 816 N.Y.S.2d 715 [2006]; Loehr v. New York Unified Court System, 150 AD3d 716, 57 N.Y.S.3d 40 [2nd Dept 2017]; Kamchi v. Weissman, 125 AD3d 142, 1 N.Y.S.3d 169 [2nd Dept 2014].) Claimant’s argument that section 304(H) should be read to require a condemnee to pay back only the difference between the final award and the condemnor’s trial appraisal would eviscerate that section, as a situation where the final award would be less than the condemnor’s trial appraisal is not readily apparent. Further, such a reading would not accomplish the purpose of section 304(H) of assuring that a condemnor did not have to pay more than the judicially determined value of a property. Similarly, Claimant’s argument that Article 3 should be read to require a “one offer” or “one appraisal” is unconvincing. The inclusion of section 304(H) in Article 3 only makes sense if there are circumstances in which a condemnor is permitted to revise an offer or submit a trial appraisal that is lower than the appraisal on which the advance payment was based. Further, section 304(F) specifically allows for a revised offer to correct and error or miscalculation. Sections 303-304(A), 304(F) and 304(H) can be reconciled by reading them together to 1) require the advance payment be 100 percent of a condemnor’s highest appraisal, 2) allow a condemnor to rely on a different appraisal at trial, but only where the second appraisal corrects an error or miscalculation, in the appraisal on which the advance payment was based, and 3) require a condemnee to pay back the amount of the advance payment that exceeds a final award. Such an interpretation would give meaning to all the sections of Article 3 and would produce a rational result. The CITY’s argument that section 304(F)’s limitations apply to revising an offer only before it is accepted as an advance payment, would produce an irrational result. There is no logical reason to only allow an offer to be revised to correct an error before it is accepted as an advance payment, but then to allow a condemnor to submit a lower appraisal without cause after the offer is accepted as an advance payment. If a condemnor is allowed to prepare two appraisals and use one as the basis for an advance payment and the other at trial, then the requirement that of section 303 that the advance payment be 100 percent of the highest approved appraisal would have no meaning. The CITY argues that if a condemnee opts to that accept an offer as an advance payment, then they accept the risk that they will get less than the offer and have to pay back the difference. The unstated rationale behind such a reading of section 304(F) would be to put pressure on a condemnee to accept the offer it considers insufficient as full payment instead of as an advance payment. Such a reading would conflict with the provision of section 304(A)(3) that a decision to accept the offer as an advance payment shall in no way prejudice the right of a condemnee to claim additional compensation. As the advance payment must be based on a condemnor’s highest approved appraisal, there is no rational basis to allow a condemnor to submit a second lower appraisal, except where necessary to correct an error or miscalculation. The limitations on revising an offer of section 304(F) should properly be read as applying even after the offer has been accepted as an advance payment. It must be remembered in this context, that a condemnor controls the amount of the advance payment. While the advance payment must be 100 percent of the highest approved appraisal, a condemnor can provide whatever legal instructions and assumptions it believes are appropriate for the appraiser to follow in preparing the appraisal. The cases cited by the CITY for the proposition that once an offer is accepted as an advance payment section 304(F) does not apply and a condemnor is free to revise an offer or submit a lower trial appraisal for any reason, do not in fact stand for that proposition. The case of Phelps Dodge v. State of New York, Weinstein, D., Ct. Cl, June 27, 2016, UID 2016-049-030, involved a motion by a condemnee for a supplemental advance payment where the condemnor’s trial appraisal was higher than the advance payment. The Court held that once a condemnee accepted an advance payment they cannot object to it as inadequate, but must file a claim and adjudicate the value of the property. Id. Here Claimant’s argument is not that the advance payment is was insufficient but that the CITY violated section 304(F) by revising its offer for a reason other than to correct an error or miscalculation. The case of Lateral Sewer v. Martin Construction Corp., 113 AD2d 799, 493 NYS2d 372 (2nd Dept 1985), involved a situation where a condemnor sought to revise an offer because of newly discovered damages to the property, after it had deposited the advance payment in court pending, resolution of title issues. The Court held that pursuant to section 304(F), the condemnor could revise its offer because of the error. Although the court stated at one point in the decision, that it was allowing the revision before the payment was made, the recitation of facts indicates that the court allowed the condemnor to revise the offer, after the condemnee had elected to accept the offer as an advance payment, after the condemnor had deposited the payment in court, and after it had paid part of the advance payment to the condemnee. The result in Lateral Sewer is actually contrary to the position that section 304(F) does not apply once a condemnee elects to accept an offer as an advance payment. Similarly, the case of In re Village of Haverstraw, 9 Misc3d 1120(A), 862 NYS2d 812 (Su Ct, Rockland Cty 2005), involved a situation where the condemnor revised its offer after it had been accepted by the condemnee. In the opening sentence of the decision Judge Dickerson framed the issue as: “In this latest exploration of the scope of advance payments and interest rates, this Court must decide whether a condemnor may make an offer of $3,480,000 to a condemnee pursuant to Eminent Domain Procedure Law ["E.D.P.L."] §303, have it accepted and then withdraw the offer and replace it with a revised offer reducing the amount to $2,596,150 “to reflect correction of error or miscalculation” [E.D.P.L. §304(F)]. Stated, simply, the condemnor may revise and reduce its offer [which the condemnee accepted protesting only the offered interest of 4 percent] when the first offer was based upon “error or miscalculation” which is evident herein.” Id at 1120(A) The condemnor had made an offer which was accepted by the condemnee as an advance payment. Subsequently the condemnor lowered the offer alleging that the initial offer was based on error. Specifically, the condemnor alleged that its appraiser failed to consider the costs of clearing the site and that an environmental review disclosed contaminants on the site that required special treatment. The court allowed the condemnor to revise the offer, after it had been accepted by the condemnee as an advance payment, because of the error citing section 304(F). The CITY’s position that it did not revise its offer but only submitted a trial lower appraisal is a distinction without a difference. By statute both the offer and the advance payment must be 100 percent of the appraisal. The only way for a condemnor to revise an offer is to submit an amended or a new appraisal. Whether a condemnor submits a lower revised appraisal or a new lower trial appraisal, it puts the condemnor’s appraised value below that which was the basis for the advance payment. In reconciling sections 304(F) and 304(H), it is significant that both the restrictions on revising an offer of section 304(F), and the provision for recoupment of section 304(H), were added to the EDPL at the same time. The adoption of the EDPL was the result of a multi-year legislative process. Prior to the EDPL, New York did not have a uniform procedure for taking property by eminent domain but had a multitude of separate statutes governing the exercise of eminent domain by individual governmental entities and authorities. The process of developing a unified eminent domain process out of the myriad of separate procedures that had developed over decades, was a lengthy and complex one. To aid in developing the legislation, the legislature established a State Commission on Eminent Domain to examine the recodification of the laws and procedures governing eminent domain. (Laws of 1970 chapter 621; Laws of 1972 chapter 478; Laws of 1973 chapter 926; Laws of 1974 chapters 1078-9;) The Commission issued reports in the years 1971, 1972, 1973, and 1974 which included proposals for what became the EDPL. The Commission’s 1971 Interim report and its 1972 report recommended a requirement that a condemnor make an offer of 100 percent of the appraised value of the property. The Commission’s 1973 report proposed draft legislation that required an offer to be 100 percent of the highest approved appraisal and which gave a condemnee the option to elect to accept it as an advance payment with no prejudice to their right to claim additional compensation. The 1973 report added a (proposed section 305[D]) which gave a condemnor the right to revise its offer. The proposed section did not put any limitations on the right to revise the offer, nor did it contain a provision for allowing a condemnor to recoup any part of an advance payment which exceed a final award. In its 1974 report the Commission again included a requirement that a condemnor make an offer of 100 percent of its highest approved appraisal (proposed section 303). In its comments on the proposed section the Commission stated that the section mandated the “one offer system” which it felt was the most equitable approach. (1974 Report of the State Commission on Eminent Domain and Real Property Tax Assessment Review, p 24-25). The 1974 report again included a section which gave a condemnor the right to revise its offer and again did not put any limitations on the right to revise the offer. The 1974 report again included no provision to recoup any part of an advance payment that exceeded a final award. The State Legislature passed versions of the EDPL in 1973-1974 sessions (bill number S-7969) and the 1977-1976 Session (bill S 5128-A, A7038-A) which allowed a condemnor to revise an appraisal without limitation, and which did not include a provision to recoup any part of an advance payment that exceeded a final award. The bills were vetoed for reasons unrelated to these two issues. The EDPL was passed and signed into law in 1977. The law that was passed was the first version that limited a condemnor’s right to revise an offer to the correction of error or miscalculation, and the first which included the right to recoup excess advance payments. The fact that limitations of section 304(F) and section 304(H) were first added to the same version of the bill, together with the fact that a recoupment will only occur where a condemnor submits a lower revised appraisal, evidence that the legislature tied the allowing a condemnor to recoup portions of an advance payment that exceeded a final award to the limiting a condemnor’s ability to revise its appraisal to only correct for errors or miscalculations. If the CITY is correct, as seems likely, that the 1976 decision in, In re Nassau (William Cullen Bryant Park), 87 Misc2d 1004, 386 N.Y.S.2d 918 (Nassau Cty 1976), not to enforce a recoupment agreement was the reason the legislature added section 304(H) to the final bill, it appears that they balanced that addition by adding the limitation on a condemnor’s right to revise its offer. Interpreting section 304(F) to allow a condemnor to submit a revised or trial appraisal only to correct an error or miscalculation even after an offer is accepted would fulfill the purpose of section 304(H) by allowing a condemnor to recoup an excess portion of an advance payment, while reconciling sections 304(F) and 304(H) with the requirement of section 304(A) that the advance payment be 100 percent of the appraised value. In the present case however, Claimant has waived objection to the lower trial appraisal by not objecting to it until after trial. The Claimant has argued that the CITY violated section 304(F) by failing to move for leave to submit a lower trial appraisal. The CITY, contends that even assuming a condemnor were limited to submitting a lower trial appraisal only to correct for error or miscalculation, the time for Claimant to have objected was at the time the lower appraisal was made, or soon after. In this the CITY is correct. While Part 202.61 of the Uniform Court Rules, requires a motion to amend a trial appraisal that has already been exchanged, section 304(F) does not require a motion where a trial appraisal in effect revises an offer. The fact that a condemnor relies on a lower appraisal at trial does not by itself justify an assumption that the lower appraisal was made in bad faith. (Matter of Village of Haverstraw, 9 Misc3d 1120(A) 862 NYS2d 812 [Su Ct Rockland Cty 2005].) Where a Claimant believes that a trial appraisal differs from the appraisal on which the offer was based, for reasons other than to correct a mistake or miscalculation, their remedy is to move to strike the appraisal as violative of section 304(F), rather than object after trial. Where a condemnee seeks to move to strike a condemnor’s trial appraisal as violative of section 304(F), by necessity, the advance payment appraisal must be disclosed. Generally, the appraisal on which the advance payment was made is not subject to disclosure or admissible as evidence in chief at trial. (Matter of Town of Oyster Bay (Bruce), 54 AD2d 762, 387 NYS2d 881 [2nd Dept 1976]; Schad v. State, 240 A.D.2d 483, 659 N.Y.S.2d 765 [2nd Dept 1997]; First National City Bank v. State of New York, 72 A.D.2d 762, 421 N.Y.S.2d 381 [2nd Dept 1979]; CMRC Corp., v. State of New York, 270 AD2d 27, 704 NYS2d 219 [1st Dept 2000].) It has also been held that such an appraisal is subject to disclosure upon a showing that the party seeking discovery has substantial need of it in the preparation of the case and is unable to obtain the material by other means. (CMRC Corp., v. State of New York, 270 AD2d 27, 704 NYS2d 219 [1st Dept 2000].) Where a condemnee has a good faith basis to believe that a lower trial appraisal was not submitted in order to correct an error, than they would have a substantial need for disclosure of the first appraisal. The condemnee would need to have disclosure of the advance payment appraisal to compare to the trial appraisal. The limitation in section 304(F) on a condemnor’s right to revise an offer would be rendered meaningless if a condemnee could not have disclosure of an advance payment appraisal in order to challenge a revision. Further, the logic behind the rule that an advance payment appraisal is not discoverable pursuant to CPLR 3101(d), as material prepared for litigation or as a settlement offer, is problematic. The appraisal on which an offer is based is not strictly material prepared for litigation because it is a statutory requirement for any vesting, whether or not a claim will be filed. At the time the offer is made it is not known if the taking will result in a claim. Further as discussed above, the offer in a taking by eminent domain is not merely a settlement offer in the ordinary sense. A condemnor is not free to make whatever offer they wish. By statute the offer must be 100 percent of the highest appraisal of the property. Additionally, a condemnor cannot withdraw or change their offer except to correct for an error or miscalculation in the appraisal on which it was based. Aside from not objecting to the appraisal before trial, Claimant in the present case must be held to have waived objection to the trial appraisal for an additional reason. Claimant herein entered into a stipulation as to the regulated and unregulated values of the property which was wetlands. The parties stipulated that the regulated value of the property was $248,000 and the unregulated value of the property was $4,552,000. It is true that because of the nature of the case the regulated and unregulated values of the property were essentially not in dispute. The issue in dispute was what increment should be added to the regulated valued of the property to account for the probability that the state wetlands regulations would be found to be a regulatory taking. The appraisals of both sides were close as to the regulated and unregulated values of the property. Both parties also agreed that because of the wetlands regulations, the owners of the property would not be able to obtain a permit to develop it. Where the parties differed was the increment that should be applied. The CITY’s appraiser applied an increment 32 percent of the difference between the regulated and unregulated values of the property and the Claimant’s appraiser used a 75 percent increment. It was the difference in the increments that accounted for the difference in the parties’ appraisals. However, it was clear when the stipulation was entered into, that if the increment in the CITY’s appraisal was adopted and applied to the difference between the stipulated regulated and unregulated values, then the award for the property would be less than the advance payment. It is also true that there was a greater difference in the stipulated regulated and unregulated values, than those in each sides appraisal, which meant that the result of the trial court adopting the Claimant’s increment was an award that was greater than Claimant’s exchanged appraisal. After entering into the stipulation which narrowed the dispute before the Court to the question of the proper increment to be applied, Claimant cannot at this stage object to the CITY’s trial appraisal. Constitutional Issues Claimant argues that section 304(H) as applied in this case is unconstitutional for three reasons. First, because the transactional costs associated with selling replacement property purchased with the advance payment results in the Claimant receiving less than full value for the property as determined by the court. Second, to the extent the Claimant has not earned 6 percent interest on the advance payment, an award of 6 percent interest on the excess judgment would deprive the Claimant of full compensation. Third, if a Claimant cannot use the advance payment to purchase a replacement property until a final determination of the value of the property is made, they would lose the right to take advantage of the tax benefits of IRS Code Section 1033. The CITY argues that recoupment of excess advance payments has long been part of condemnation law and sanctioned by the US Supreme Court in the case of, US v. Miller, 317 US 369, 63 S Ct 276 (1943). The CITY argues that transaction costs and interest are incidents of litigation that are not normally compensable and that even attorneys’ fees and expert fees in eminent domain cases are not constitutionally mandated, but are based on statute. The Claimant argues in response, that the transaction costs necessitated by a section 304(H) judgment are not incidents of litigation such as attorneys’ fees, or expert fees incurred as part of a condemnee’s burden of proving their claim. Claimant maintains that any amount by which an advance payment exceeds a final judgment is the result of an error by the condemnor in determining the value of the property when making the advance payment and thus should not be bourne by condemnee. The obligation to provide an advance payment comes from New York State Statute rather than the constitution. The constitution requires only a secure and certain method of compensation, not advance payment. (Loretto v. Teleprompter Manhattan CATV, 58 N.Y.2d 143, 459 N.Y.S.2d 743 [1983]; Sage v. City of Brooklyn, 44 Sickels 189, 89 N.Y. 189 [1882]; in the Matter of the City of New York (South Beach Bluebelt), 23 Misc.3d 1133(A),889 N.Y.S.2d 881 [Su Ct Kings Cty 2009].) New York courts have enforced section 304(H), ordering recoupment of advance payments in excess of a final award. (Matter of City of New York (West Bushwick Urban Renewal Area Phase 2), 28 Misc3d 644, 905 NYS2d 838 [Su Ct Kings Cty 2010]; Matter of Village of Haverstraw, 9 Misc3d 1120(A) 862 NYS2d 812 [Su Ct Rockland Cty 2005].) While there may be some situations where the transactions costs incurred in selling replacement property in order to pay a section 304(H) judgment would result in such hardship or diminution of the award as to be unconstitutional, Claimant has made no such showing that that is the case here. As to the award of appropriate interest, as discussed below, the amount of interest awarded can and should be such that it does not reduce the amount a condemnee is left with, below the amount of the final awarded of the court. Lastly, the inability to take advantage of the tax benefits of IRS Code Section 1033 does not deprive a condemnee of just compensation. Section 1033 provides a deferral of taxes on capital gains realized by owners of property taken by eminent domain where they use the proceeds to purchase replacement properties. However, to qualify for the deferral, the replacement property generally must be acquired within two years of the end of the tax year in which the gain was realized. However, relief from capital gains taxes on an award is not a part of just compensation. (Heller v. State, 81 NY2d 60, 595 N.Y.S.2d 731 [1993]; S&M Enterprises v. US, 43 Fed Cl 210, [Ct of Fed Cl 1999].) In Heller the Court of Appeals held that the requirement of just compensation does not require the reimbursement of a transfer gains tax. Id. Interest In addition to being entitled to a judgment for $950,012, the amount by which the advance payment exceeded the final award, the CITY is entitled to appropriate interest pursuant to section 304(H). The CITY seeks 6 percent interest from the date of vesting until the date of entry of judgment. Claimant argues that using 6 percent interest would unconstitutionally deprive a condemnee of just compensation in cases where they use an advance payment to purchase replacement property or where they did not earn 6 percent on the advance payment. Claimant also argues that because the excess payment was the result of the CITY’s error the CITY should bear the cost of the loss of interest from the time of the advance payment. The period of time between the advance payment and the exchange of appraisals can be years and the time until there is a final award even longer. The CITY seeks interest of 6 percent from the date of vesting, which occurred 13 ½ years ago. This would result in the Claimant having to pay interest equal to 81 percent of the excess advance payment, on top of the excess portion of the advance payment itself. This would in effect penalize the Claimant for having accepted the CITY’s offer as an advance payment and would leave it with less than just compensation. The interest to be awarded pursuant to section 304(H) is not analogous to the interest a condemnor is required to pay on an award from the date of vesting, which is based on the fact that the condemnor has taken the property before paying for it. The award of appropriate interest pursuant to section 304(H) is to ensure that a condemnor does not have to pay more for a property than its judicially adjudicated value. In determining what interest is appropriate it must be remembered that the CITY determined the amount of the advance payment. Even though the payment had to be 100 percent of its highest approved appraisal, the CITY was able to issue legal instructions for the appraiser to follow, including whatever facts and assumptions the CITY deemed appropriate. The interest on the advance payment of $2,575,700, was $412,394 and the advance payment exceeded the final award of $1,625,688 by $950,012. The CITY calculates that the portion of the $412,394 in interest it paid on the advance payment which is attributable to the $950,012 excess, was $152,106. The interest of $412,394 was 16.011 percent of the $2,575,700 advance payment, which is 6 percent a year from the date of vesting until the payment was made available in April of 2009. Applying a rate of 16.011 percent to the excess of $950,012 results in $152,106 in interest. Thus, the CITY’s calculation of how much of the interest paid was attributable to the excess portion of the advance payment is correct. Awarding the CITY interest of $152,106, which represents the actual interest it paid that it is attributable to the excess portion of the award, is appropriate and equitable. This together with the excess of $950,102 would total a recoupment of $1,102,118. When this is subtracted from the total of the advance payment and the interest paid on the advance payment of $2,988,094, it leaves Claimant with an award of $1,625,688 plus interest of $260,288 on that award. The $260,288 equals interest of 16.011 percent on the final judicial award of $1,625,688. This is what the interest on the advance payment would have been had the advance payment been equal to the final judicial award. In this way the Claimant receives the full amount of the judicially determined just compensation and the CITY gets back all of the excess award and interest on the excess that it paid. The Claimant will also be liable for any post judgment interest on this judgment. WHEREFORE it is hereby ORDERED that CITY’s motion is granted; and it is further ORDERD and ADJUDGED that the CITY OF NEW YORK is granted Judgment against Claimant STATEN ISLAND LAND CORP in the sum of $950,012, plus interest in the amount of $152,106, together with statutory costs, of _____ for a total of _____. This constitutes the decision, order and judgment of the Court.
