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CONDEMNEE WAS ENTITLED TO ADDITIONAL ALLOWANCES (ATTORNEY’S FEES AND COSTS) BASED UPON THE DIFFERENCE IN COMPENSATION BETWEEN THAT OFFERED BY THE VILLAGE AND THE AWARD BY THE COURT IN THIS EMINENT DOMAIN PROCEEDING; THE STATUTORY INTEREST RATE OF 6%, NOT 9%, SHOULD HAVE BEEN APPLIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that some of the additional allowances for fees and costs (pursuant to Eminent Domain Procedure Law (EDPL) 701) should not have been granted and the statutory interest rate of 6%, not 9%, should have been applied. The additional allowances were sought based upon because the court awarded more compensation to the condemnees (Ferguson and Executive) than that offered by the condemnor (the Village):

Pursuant to EDPL 701, where a court’s award to a claimant in a condemnation proceeding is “substantially in excess of the amount of the condemnor’s proof” and where the court deems it necessary to “achieve just and adequate compensation,” the court may award the claimant an additional sum for costs including attorneys’ and other fees. The goal of this statute is to ” assure[ ] that a condemnee receives a fair recovery by providing an opportunity for condemnees whose property has been substantially undervalued to recover the costs of litigation establishing the inadequacy of the condemnor’s offer'” … . …

… [T]he Supreme Court’s award of $721,671 exceeded the Village’s advance payment of $575,000. While the difference is not insignificant, we find that it does not substantially exceed the Village’s advance payment within the meaning of EDPL 701 … . …

Although the Village, in effect, concedes that the Supreme Court’s award to Executive of $159,596 substantially exceeded its advance payment of $61,044, it correctly points out that Executive was unsuccessful as to the bulk of its claims for compensation and received an award of 16.4% of the $973,000 it sought. Contrary to the Village’s assertion, since Executive’s attorneys were compensated on a contingent basis, their fees were perforce proportionate to their success. Accordingly, the portion of the additional allowance awarded to Executive representing their fees should not be disturbed … . …

Although the Village, in effect, concedes that the Supreme Court’s award to Executive of $159,596 substantially exceeded its advance payment of $61,044, it correctly points out that Executive was unsuccessful as to the bulk of its claims for compensation and received an award of 16.4% of the $973,000 it sought. Contrary to the Village’s assertion, since Executive’s attorneys were compensated on a contingent basis, their fees were perforce proportionate to their success. Accordingly, the portion of the additional allowance awarded to Executive representing their fees should not be disturbed … . Matter of Village of Haverstraw, 2020 NY Slip Op 01068,  Second Dept 2-13-20

 

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