The facts of this matter are set forth in a prior decision of this Court and will not be repeated at length. As relevant here, claimant owned 97.48 acres of land located at the intersection of Quaker Road and Quaker Ridge Boulevard in the Town of Queensbury, Warren County, which land was bisected by a National Grid powerline with 84.58 acres lying north of the powerline (hereinafter the “northern parcel”) and 12.9 acres lying south of the powerline (hereinafter the “southern parcel”). In April 2015, condemnor/defendant (hereinafter the County) exercised its power of eminent domain over the northern parcel, acquiring 3.86 acres of the land and imposing an avigation easement over the remaining 80.72 acres. The County appraised claimant’s loss as a result of the taking of the land and the easement to be $327,200.00, which amount claimant accepted as an advance payment while reserving its right to pursue additional compensation (see EDPL 304 [A] [3]). Of this $327,200.00, the parties agreed that $53,294.10 would be paid to the Warren County Treasurer for taxes owed by claimant with the remaining $273,905.90 paid directly to claimant. In September 2015, claimant commenced this proceeding pursuant to EDPL article 5 for additional compensation. Issue was joined and experts for both claimant and the County conducted separate appraisals of the property to determine its unencumbered value and the diminution of value caused by the taking of the land and the easement. Claimant’s expert appraised the entire 97.48 acres of land under the theory that the entire property was affected by the acquisition. The County’s expert, on the other hand, appraised only the northern parcel and omitted the 12.9-acre southern parcel. A trial was held in April 2018, following which the Court issued a Decision, Order and Judgment dated August 16, 2018 finding that claimant was entitled to compensation in the amount of $297,000.00 for the taking of its land and the easement (60 Misc 3d 1222[A], 2018 NY Slip Op 51208[U] [Sup Ct, Warren County 2018], mod 182 AD3d 729 [2020]). In so doing, the Court rejected the testimony of claimant’s expert and relied solely upon that of the County’s expert (see id. at *9). Claimant appealed this Decision, Order and Judgment to the Appellate Division, Third Department, which issued a Memorandum and Order on April 9, 2020 finding that the Court erred in failing to consider all 97.48 acres of land as a single property (182 AD3d at 731). The Third Department further found that claimant was entitled to compensation in the amount of $520,242.00; $193,042.00 more than the County originally paid (id. at 738). Presently before the Court is claimant’s motion for (1) an additional allowance of $194,805.56 pursuant to EDPL 701, which amount is comprised of $142,252.88 in counsel fees and disbursements and $52,552.68 in appraisal fees; and (2) interest on the additional $193,042.00 awarded, at the rate of 6 percent per annum from the date of the acquisition — May 1, 2015 — to the date of payment — December 10, 2021. Turning first to that aspect of the motion which seeks an additional allowance under EDPL 701, this statute was enacted by the Legislature “[i]n fairness to a private property owner forced to litigate the value of its property when the [condemnor] 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]; see Hakes v. State of New York, 81 NY2d 392, 397 [1993]). The statute provides as follows: “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.” EDPL 701 “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’” (Hakes v. State of New York, 81 NY2d at 397, quoting EDPL 701). “Where both tests are satisfied, the court may award reasonable fees” (Hakes v. State of New York, 81 NY2d at 397). With respect to the first criteria, while EDPL 701 does not quantify the amount by which the award must exceed the condemnor’s offer, courts have consistently found increases of 30 percent or more to be substantial (see e.g. Matter of Metropolitan Transp. Auth., 86 AD3d 314, 327-328 [2011] [44.4 percent increase deemed substantial]; Matter of Gelsomino v. City of New Rochelle, 24 AD3d 554, 555 [2006] [35.5 percent increase deemed substantial]; Matter of Town of Islip v. Sikora, 220 AD2d 434, 436-437 [1995] [32.3 percent deemed substantial]; Matter of E.D.J. Quality Realty Corp. v. Village of Massapequa Park, 204 AD2d 321, 322 [1994] [58 percent increase deemed substantial]; Scuderi v. State of New York, 184 AD2d 1073, 1073 [41.4 percent increase deemed substantial]; Karas v. State of New York, 169 AD2d 816, 816 [1991] [41.6 percent increase deemed substantial]; compare Matter of Village of Haverstraw, 180 AD3d 791, 794 [2020] [25.5 percent increase not deemed substantial]; Matter of Village of Johnson City [Waldo's, Inc.], 277 AD2d 773, 775 [2000] [19 percent increase not deemed substantial]). Here, the $520,242.00 awarded by the Third Department is 59 percent more than the $327,200.00 initially paid to claimant by the County. The Court therefore finds that the first criteria has been satisfied. Briefly, the County contends that “at the time of the offer and taking, the total delinquent taxes owed on the [northern and southern] parcels totaled the amount of $75,400.72.”1 The County further contends that this $75,400.72 should be deducted from the $520,242.00 awarded by the Third Department, thus decreasing the award to $444,841.28 — which, according to the County, does not substantially exceed its initial offer. These contentions, however, are unavailing. The County has offered no legal authority whatsoever to support the proposition that the amount awarded should be reduced by the amount owed by claimant in back taxes — nor does it appear that any such authority exists. Irrespective of whether the funds are used by claimant to pay off a debt, they are nonetheless owed to claimant because of the acquisition of its property. Further, even if the award was decreased to $444,841.28, it is still 35 percent more than the initial offer and thus meets the required threshold for “substantially in excess” (EDPL 701; see Matter of Gelsomino v. City of New Rochelle, 24 AD3d at 555; Matter of Town of Islip v. Sikora, 220 AD2d at 436-437). Turning now to the second criteria, where the Court has found the amount recovered to be substantially in excess of the condemnor’s offer — and claimant submits proof of the legal and appraisal expenses incurred in prosecuting its claim — the Court will generally find an additional allowance necessary to achieve just and adequate compensation (see Hakes v. State of New York, 81 NY2d at 398; Matter of City of Long Beach v. Sun NLF Ltd. Partnership, 172 AD3d 1061, 1062 [2019]; Matter of Malin v. State of New York, 183 AD2d 899, 900 [1992]). Here, claimant has submitted the affirmation of its counsel — Patrick L. Seely, Jr., Esq. — with respect to the $124,252.88 in legal fees and disbursements incurred, and the affirmation of its expert — Kenneth V. Gardner — with respect to the $52,552.68 in appraisal fees incurred. Claimant has also submitted the affidavit of its President with respect to the necessity of these fees. The Court thus finds that the second criteria has also been satisfied. With both criteria having been met, the Court must now determine the “reasonable fees” to be awarded (Hakes v. State of New York, 81 NY2d at 397). Turning first to the question of counsel fees, “[c]ontingency fee arrangements are an acceptable factor to be considered by the court in determining reasonable counsel fees” (Matter of City of Long Beach v. Sun NLF Ltd. Partnership, 172 AD3d at 1062; see Matter of City of Long Beach v. Sun NLF L.P., 146 AD3d 775, 777 [2017]; Matter of New York Convention Ctr. Dev. Corp. [Recycling for Hous. Partnership], 234 AD2d 167, 167 [1996]; Matter of Hoffman v. Town of Malta, 189 AD2d 968, 969 [1993]). “However, in awarding an additional allowance payable by the condemnor, the [C]ourt is not bound by the retainer agreement with the client; the [C]ourt’s focus is upon what would be a reasonable fee” (Matter of City of Long Beach v. Sun NLF Ltd. Partnership, 172 AD3d at 1062; see Matter of City of New York, 52 AD3d 387, 388 [2008]; Matter of City of New York v. Jamaica Arms Hotel, Inc., 44 AD3d 1040, 1040 [2007]). “Even where the [C]ourt takes into account the amount calculated under a contingency fee retainer, the court may reduce the amount where necessary in determining what constitutes a reasonable fee” (Matter of City of Long Beach v. Sun NLF Ltd. Partnership, 172 AD3d at 1063; see Matter of City of Yonkers v. Celwyn Co., 221 AD2d 437, 438 [1995]). Here, claimant signed a retainer agreement with Mr. Seeley’s firm relative to the trial which provided for a contingency fee of one-third of the amount awarded. Claimant then signed a second retainer agreement with Mr. Seeley’s firm relative to the appeal which provided for rates of $325 per hour for work performed by Mr. Seeley, $225 per hour for work performed by Brett Williams, Esq. — an associate at Mr. Seeley’s firm — and $190 per hour for work performed by Carl Rosenbloom, Esq. — senior counsel at Mr. Seeley’s firm. Claimant is seeking counsel fees in the amount of $64,347.00 under the first retainer agreement — which is one-third of the additional $193,042.00 awarded by the Third Department — together with disbursements in the amount of $2,873.75, for a total of $67,220.75. Claimant is also seeking counsel fees in the amount of $65,172.85 under the second retainer agreement, together with disbursements in the amount of $9,859.28, for a total of $75,032.13. Combining the $67,220.75 sought under the first retainer agreement with the $75,032.13 sought under the second agreement, claimant seeks a grand total of $142,252.88 in counsel fees and disbursements. Under the circumstances, the Court finds that the amount requested for counsel fees is excessive. While the Third Department increased the award due to claimant to $520,242.00, claimant was seeking an award of $2,525,000.00 — far more than the amount awarded. To that end, a portion of the fees sought on the appeal were “incurred in the hope of recovering a far greater amount than was awarded” (Matter of New York City Tr. Auth., 150 Misc 2d 917, 923 [Sup Ct, Queens County 1991]; see Matter of Hoffman v. Town of Malta, 189 AD2d at 969). Insofar as claimant was awarded far less than the amount sought, the Court finds that an award of half of the counsel fees sought on appeal is reasonable — namely $64,759.93. This, combined with the $12,733.03 in disbursements, yields a total award of $77,492.96 in counsel fees and disbursements. Turning now to the $52,552.68 in appraisal fees sought, this amount is comprised of (1) $14,000.00 charged by Mr. Gardner for an appraisal report prepared in 2013, when the County initially approached claimant with respect to the taking of its land and the easement; (2) $9,690.00 charged by Mr. Gardner for an updated appraisal report prepared in 2015, when the County again approached claimant and ultimately exercised its power of eminent domain;2 and (3) $28,862.68 charged by Mr. Gardner for his preparation for and appearance at trial. According to Mr. Gardner he charged $275 per hour for his services, with this matter “requir[ing] extra effort [to] review[], investigat[e] and prepar[e] for the County’s presentation of its calculations of damages.” Mr. Gardner further states that he charged “$285/hour in 2017 and 2018 and is currently [charging] $295/hour.” With nothing in the record relative to the amounts typically charged by real estate appraisers in cases such as this, the Court directed the submission of supplemental papers during oral argument on August 4, 2021.3 Specifically, the Court directed the County to submit an affidavit from its expert appraiser as to the customary fees charged in cases such as this, and further provided claimant with an opportunity to respond. To that end, the County’s expert — Todd P. Thurston — submitted an affidavit stating that his “hourly rate in 2017 and 2018 was $150[.00, and his] current hourly rate is $200.00.” He states that he charged $4,000.00 for preparation of an initial report for the County in 2009; $3,750.00 for a 2012 updated to this initial report; and $5,000.00 for a January 2017 report “which included a full accounting of planning board minutes and statewide research of avigation easement data….” He further states that his “entire trial related expenses…totaled $8,152.97.” Thus, it appears that the total amount charged for his expert services in this matter was $20,902.97-$45,444.89 less than the total now sought by Mr. Gardner. Mr. Thurston also attaches affidavits submitted by Mr. Gardner in three eminent domain proceedings recently pending before the Court of Claims, which affidavits request fees of (1) $5,900.00 for preparation of the appraisal report and $6,600.00 for trial preparation and attendance, for a total of $12,500.00; (2) $8,900.00 for preparation of the appraisal report and $6,840.00 for trial preparation and attendance, for a total of $15,740.00; and (3) $5,500.00 for preparation of the appraisal report and $3,575.00 for trial preparation and attendance, for a total of $9,075.00.” According to Mr. Thurston, Mr. “Gardner’s claim for appraisal fees and consulting work/expert witness fees are excessive when compared to [these] other recent court applications….” In response, Mr. Gardner states that his experience and reputation warrant the fee of $275.00 per hour. More specifically, he states as follows: “Accountants, attorneys and appraisers do not charge the same fees or have the same hourly rates. In my view, fees are established based on the professionalism, integrity and the quality of the service provided. I prepare proposals with my fee structure and then either get hired or not. If someone feels the value of my service is not worth my proposed fee structure then they will hire someone else.” Mr. Gardner further states that his “total fees vary widely based on the scope and complexity of the assignment.” Insofar as his affidavits for the three Court of Claim cases are concerned, Mr. Gardner indicates that all three cases involved the same road widening project and he “was able to reduce [his] fee recognizing the efficiencies of preparing multiple appraisal reports on [similar] properties….” Upon review of these submissions, it appears that appraisers charge an hourly rate which they believe to be commensurate with their qualifications and experience — or perhaps one negotiated with their clients. As stated by Mr. Gardner, this is not unlike those fees charged by attorneys. The Court thus declines to find Mr. Gardner’s hourly rate of $275.00 to be unreasonable. The Court further declines to find the $52,552.68 requested excessive solely because it exceeds the fees requested by Mr. Gardner in the Court of Claims cases. Indeed, each case requires a different amount of time and attention. As noted above, however, claimant was ultimately awarded far less than the amount sought. To that end and consistent with the analysis set forth hereinabove, the Court finds that an award of half of the appraisal fees sought is reasonable — namely $26,276.34 (see Matter of Village of Haverstraw, 180 AD3d at 795). Briefly, the County contends that the aspect of claimant’s motion seeking additional compensation is untimely. The Court, however, finds this contention to be without merit. “The text of [EDPL] 701 has no limitation for the timing of an application for an additional allowance” (General Crushed Stone Co. v. State of New York, 93 NY2d at 26). Indeed, in General Crushed Stone Co. v. State of New York (supra), the Court of Appeals found as follows: “We would disrupt the important remedial purpose of section 701 if we were to hold that an application for allowable costs must be brought before, and incorporated into, the judgment determining the property’s value. Although nothing in the statute prohibits such a conclusion, nothing compels it either. We thus determine that an application for allowances under section 701 of the [EDPL] can properly be brought before or after entry of judgment on the taken property’s value, or after any appeal” (id. at 28). Finally, the County seeks interest in the amount of 6 percent per annum on the additional $193,042.00 recovered from the date of the acquisition — May 1, 2015 — to the date of payment — December 10, 2021. In this regard, EDPL 514 (A) provides that “a condemnee shall be entitled to lawful interest from the date of acquisition to the date of payment.” Although the EDPL does not provide for a specific interest rate, the rate set forth in General Municipal Law §3-a (2) is typically adopted (see Matter of Village of Haverstraw, 180 AD3d at 794; Matter of Town of Islip v. Sikora, 220 AD2d at 437). This statute provides that “[t]he rate of interest to be paid upon any judgment or accrued claim against the municipal corporation arising out of condemnation proceedings…shall not exceed six per centum per annum.” The Court thus finds that claimant is entitled to interest on the $193,042.00 at 6 percent per annum from May 1, 2015 to December 10, 2021, which claimant calculates as $75,619.00. Based upon the foregoing, the Court grants claimant’s motion to the extent that it is awarded an additional allowance of counsel fees and disbursements in the amount of $77,492.96 and appraiser fees in the amount of $26,276.34, as well as interest in the amount of $75,619.00, for a total award of $179,388.30. To the extent not addressed herein, the parties’ remaining contentions are either academic in light of this decision or have been considered and found to be without merit. Therefore, having considered the Affirmation of Patrick L. Seely, Jr., Esq. with exhibits attached thereto, dated January 26, 2021, submitted in support of the motion; Affidavit of Kenneth V. Gardner, II with exhibits attached thereto, sworn to January 12, 2021; Affidavit of Richard Laakso with exhibit attached thereto, sworn to January 25, 2021, submitted in support of the motion; Memorandum of Law of Patrick L. Seely, Jr., Esq., dated January 26, 2021, submitted in support of the motion; Affirmation of Ryan J. Dickey, Esq. with exhibits attached thereto, dated March 18, 2021, submitted in opposition to the motion; Affidavit of Patrick L. Seely, Jr., Esq. with exhibits attached thereto, sworn to April 9, 2021, submitted in further support of the motion; Memorandum of Law of Patrick L. Seely, Esq., dated April 9, 2021, submitted in further support of the motion; Correspondence of Patrick L. Seely, Esq. with exhibit attached thereto, dated August 4, 2021, submitted in further support of the motion; Affidavit of Todd P. Thurston with exhibits attached thereto, sworn to February 11, 2022, submitted in opposition to the motion; Affidavit of Patrick L. Seely, Esq. with exhibits attached thereto, sworn to February 24, 2022, submitted in further support of the motion; Affidavit of Kenneth V. Gardner, II, sworn to February 24, 2022, submitted in further support of the motion; and correspondence of Lawrence Elmen, Esq., dated March 1, 2022, submitted in opposition to the motion, and oral argument having been heard on August 4, 2021 with Patrick L. Seeley, Esq. appearing on behalf of claimant and Ryan Dickey, Esq. appearing on behalf of the County, it is hereby ORDERED that claimant’s motion is granted to the extent that it is awarded an additional allowance of counsel fees and disbursements in the amount of $77,492.96 and appraiser fees in the amount of $26,276.34, as well as interest in the amount of $75,619.00, for a total award of $179,388.30; and it is further ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied. The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated January 26, 2021 and the submissions enumerated above. Counsel for claimant is hereby directed serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. Dated: June 2, 2022
