Opinion
2014-02972 Index No. 18221/03.
03-02-2016
In the Matter of VILLAGE OF PORT CHESTER, etc., respondent; Dominick D. Bologna, et al., appellants.
Goldstein, Rikon, Rikon & Houghton, P.C., New York, N.Y. (Michael Rikon of counsel), for appellants. Watkins & Watkins, LLP, White Plains, N.Y. (Matthew S. Clifford, John E. Watkins, Jr., and Liane V. Watkins of counsel), for respondent.
Goldstein, Rikon, Rikon & Houghton, P.C., New York, N.Y. (Michael Rikon of counsel), for appellants.
Watkins & Watkins, LLP, White Plains, N.Y. (Matthew S. Clifford, John E. Watkins, Jr., and Liane V. Watkins of counsel), for respondent.
Opinion
In a condemnation proceeding, the claimants appeal, on the ground of inadequacy, from an order and judgment (one paper) of the Supreme Court, Westchester County (Tolbert, J.), entered February 14, 2014, which granted their motion for an additional allowance pursuant to EDPL 701 only to the extent of awarding them the sum of $406,827.44, and is in their favor and against the condemnor in only that principal sum.
ORDERED that the order and judgment is affirmed, with costs.
In this condemnation proceeding, the condemnor, the Village of Port Chester, initially offered to pay the claimants $975,000 as compensation for the taking of their real property. After a nonjury trial, the Supreme Court entered a judgment awarding the claimants the principal sum of $3,062,000 as just compensation for the taking of their real property, and this Court upheld that award on a prior appeal (see Matter of Village of Port Chester [Bologna], 95 A.D.3d 895, 943 N.Y.S.2d 575). Thereafter, the claimants moved for an additional allowance pursuant to EDPL 701 in the sum of $832,244.59. The court granted their motion only to the extent of awarding them an additional allowance in the sum of $406,827.44.
EDPL 701 “assures 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” (Hakes v. State of New York, 81 N.Y.2d 392, 397, 599 N.Y.S.2d 498, 615 N.E.2d 982). It “also vests the trial court with discretion, in order to limit both the incentive for frivolous litigation and the cost of acquiring land through eminent domain” (id. at 397, 599 N.Y.S.2d 498, 615 N.E.2d 982, citing Governor's Mem. Approving Bill, 1987 McKinney's Session Laws of N.Y., at 2724). The statute “does not establish a new entitlement but merely allows a court in condemnation cases to ameliorate the condemnee's costs in cases it considers appropriate” (Hakes v. State of New York, 81 N.Y.2d at 398, 599 N.Y.S.2d 498, 615 N.E.2d 982).
EDPL 701 requires two determinations: first, whether the condemnation award is “substantially in excess of the amount of the condemnor's proof” and second, whether reimbursement of the condemnee's costs of litigation is “necessary for the condemnee to achieve just and adequate compensation” (id. at 397, 599 N.Y.S.2d 498, 615 N.E.2d 982 [internal quotation marks omitted] ). “Where both tests are satisfied, the court may award reasonable fees” (id.; see Matter of Daniel Shakespeare Corp. v. Incorporated Vil. of Hempstead, 2 A.D.3d 853, 854, 770 N.Y.S.2d 397).
Here, the Village concedes that the condemnation award was substantially in excess of the amount of its proof and, therefore, that the first prong of the test was satisfied. As to the second prong of the test, the Supreme Court properly determined that an additional allowance in an amount less than what the claimants requested was necessary for them to receive just and adequate compensation on the ground, inter alia, that a portion of the claimants' efforts and costs were used to develop and present valuation theories to support a claim for compensation substantially in excess of the condemnation award (see Matter of Daniel Shakespeare Corp. v. Incorporated Vil. of Hempstead, 2 A.D.3d at 854, 770 N.Y.S.2d 397; Matter of Village of Johnson City [Waldo's Inc.], 277 A.D.2d 773, 775, 715 N.Y.S.2d 775; Matter of City of New York [China Plaza Co.], 254 A.D.2d 210, 210, 679 N.Y.S.2d 571; Wertheimer v. State of New York, 231 A.D.2d 897, 897–898, 647 N.Y.S.2d 620; Walsh v. State of New York, 180 A.D.2d 290, 294, 585 N.Y.S.2d 574; see also Matter of New York City Tr. Auth., 150 Misc.2d 917, 923, 572 N.Y.S.2d 613 [Sup.Ct., Queens County]; Frisbro Enters. v. State of New York, 145 Misc.2d 397, 399–400, 546 N.Y.S.2d 789 [Ct.Cl.] ). Accordingly, the court providently exercised its discretion in granting the claimants' motion for an additional allowance pursuant to EDPL 701 only to the extent of awarding them the sum of $406,827.44.