County of Oswego v. Maroney

186 A.D.2d 1031, 588 N.Y.S.2d 478, 1992 N.Y. App. Div. LEXIS 11600

Opinion

— Order unanimously reversed on the law and in the exercise of discretion with costs and application granted in accordance with the following Memorandum: EDPL 701 provides that the court may, in its discretion, grant an additional allowance for costs, disbursements and expenses where the award is substantially in excess of "the condemnor’s proof’ and when deemed necessary by the court for the condemnee to achieve just and adequate compensation. The term "condemnor’s proof’ refers to the condemnor’s initial offer (First Bank & Trust Co. v State of New York, 184 AD2d 1034; Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705). The court’s award of $47,650 was more than 200% of the condemnor’s initial offer of $21,000 and the owner necessarily expended legal fees and disbursements of $9,433.32 and appraiser’s fees in the amount of $3,859.50. We determine that the award was substantially in excess of the initial offer and that an award under EDPL 701 is necessary for the owner to achieve just and adequate compensation. Thus, the court erred in failing to award the owner an additional allowance. We exercise our authority to make the additional allowance the trial court should have made, and we award an additional allowance of $13,292.82 for attorney’s fees, disbursements and appraiser’s fees (see, Scuderi v State of New York, 184 AD2d 1073). (Appeal from Order of Supreme Court, Oswego County, Hurlbutt, J. — Additional Allowance.) Present — Boomer, J. P., Green, Balio, Fallon and Davis, JJ.