Claimant, Wesley Hills Center, LLC, brought this motion pursuant to Eminent Domain Procedure Law (EDPL) § 701 for an Order granting it an additional allowance in the sum of $334,660.98, composed of the following: for Attorney's fees: Contingency: $11,247.65, and Contingency: $280.851.38; for expert fees: Appraiser $24,815.21, and Engineer: $15,194.78; for trial related disbursements: $2,551.96, all incurred to achieve an award of just compensation for the State's appropriation, which award of just compensation was substantially in excess of the State's advance payment. Defendant, the State of New York, opposes the motion.

The underlying facts are as follows: on January 22, 2013, the Defendant took by eminent domain a piece of land, measuring approximately 6,025 square feet long, along the frontage of Route 306 in the Village of Wesley Hills, Rockland County. Defendant also took a temporary easement over the adjoining areas for the purpose of constructing a handicapped accessible sidewalk and bus shelter in front of the shopping center. This land was part of a shopping center owned by Claimant. The taking resulted in nonconformities in parking spaces and the loss of a landscape buffer. Defendant offered Claimant $157,000.00 for the taking.

Following a trial on the matter, the Court rendered a Decision dated February 26, 2018 (Scuccimarra, J.), (hereinafter, the "Trial Decision") awarding total damages to the Claimant as follows: "$96,000.00 directed damages for the fee; $580,000.00, severance damages, $52,000.00 for improvements taken and $27,160.00 for the temporary easement, or $755,160.00 total, together with statutory interest thereon from the accrual date of January 22, 2013 ". Defendant then moved for an order pursuant to CPLR §§ 2201, 4404 (b), and 4406, vacating the [*2]Court's trial decision, staying entry of judgment, and issuing a new decision, and Claimant opposed the motion. The motion was granted by Decision and Order filed on September 12, 2018 (Scuccimarra, J.) to the extent that the Court modified its Trial Decision by awarding Claimant $148,000.00 in direct damages for the fee taking, $432,000.00 in consequential damages, and $27,160.00 in damages due to the temporary easement, for total damages amounting to $607,160.00, plus statutory interest thereon from the accrual date of January 22, 2013 to the date of the Court's Trial Decision with suspension of interest between March 27, 2018 until August 27, 2018. An appeal was taken from that part of the judgment awarding consequential damages for injury to the remaining property. The award was affirmed.

The Court of Appeals, summarizing § 701, stated that "[t]he statute 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.' Where both tests are satisfied, the court may award reasonable fees" (Hakes v State of New York, 81 NY2d 392, 397 [1993]). To determine whether an award is "substantially in excess" of the initial offer, it must be more than a nominal difference (In re County of Tompkins, 298 AD2d 825, 826 [3d Dept 2002] [22.8% is not substantial]). Here, there is no question that the award of $607,160.00 (held up on appeal) far exceeds the State's offer of $157,000.00. Indeed, the difference is 287%^[FN1] , which is clearly within the definition of "substantial." Therefore, the Court finds that Claimant meets the first prong of the test.

The Court must now turn to the second prong of the analysis: whether the additional allowance is necessary for the Claimant to achieve just compensation. Claimant submitted a retainer agreement to support the claim for attorneys' fees, which provides that counsel shall be entitled to "thirty-three 33% of all amounts paid or obtained for said property over and above the advance payment". This is a standard contingency fee arrangement which has been routinely accepted because that calculation directly ties the amount paid to counsel to the amount recovered after a trial. (see Ronmar Realty, Inc. v State of New York, UID No. 2015-049-027 [Ct Cl Weinstein, J., April 30, 2015]). Given the State's initial offer, Claimant had to either accept this low offer or proceed with filing a claim and conducting a trial, which would require the skills of an experienced attorney. Here, those skills did result in a substantial award. Therefore, Claimant's request for its attorneys' fees of $ 292,099.03 ($11,247.65 + $280,851.38) is appropriate and reasonable.

Claimant is also seeking $2,551.96 in trial related disbursements. The Court finds them to be reasonable and allowable.

Additional allowance sought by Claimant is for expert fees: $24,815.21 for the Appraiser and $15,194.78 for the Engineer. To determine the reasonableness of that request, the Court considers the trial decision to determine the weight given to Claimant's expert in arriving at the final award. In that decision, Judge Scuccimarra relied primarily on the Claimant's appraiser and engineer in formulating the award. Therefore, it is clear that the experts' opinions were necessary for the Claimant to receive just compensation.

Accordingly, Claimant's motion is granted; and it is hereby

ORDERED that Judgement be entered in favor Claimant for an additional allowance of [*3]$ 292,099.03 in attorneys' fees, $2,551.96 in trial related disbursements, and $24,815.21 for the Appraiser and $15,194.78 for the Engineer, pursuant to EDPL §701, without interest.

1. Notice of Motion for the Grant of Additional Allowance Pursuant to EDPL § 701, Affirmation of Counsel, Affidavits of Eric Bergstol, Ronald Haberman, William Lahti, Memorandum of Law, Exhibits Annexed

2. Affirmation in Opposition