National Fuel Gas Supply Corp. v. Cunningham Natural Gas Corp.

Appellate Division of the Supreme Court of New York

National Fuel Gas Supply Corp. v. Cunningham Natural Gas Corp.

191 A.D.2d 1003, 595 N.Y.S.2d 275, 1993 N.Y. App. Div. LEXIS 2962

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 12, 1993

StatusPublished

Cited by2 cases

This text of 191 A.D.2d 1003 (National Fuel Gas Supply Corp. v. Cunningham Natural Gas Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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National Fuel Gas Supply Corp. v. Cunningham Natural Gas Corp., 191 A.D.2d 1003, 595 N.Y.S.2d 275, 1993 N.Y. App. Div. LEXIS 2962 (N.Y. Ct. App. 1993).

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Opinion

—Judgment unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: In this action, brought under the EDPL to appropriate lands for a gas storage field, defendants were awarded a judgment, as reduced by this Court, of $57,301 (National Fuel Gas Supply Corp. v Smole, 174 AD2d 991). Plaintiff’s initial offer in settlement of the action was $28,736. We agree with the trial court that, because the award was substantially in excess of plaintiff’s initial offer, the court was empowered to award to defendants an additional amount "for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees actually incurred by” defendants (EDPL 701; see, County of Oswego v Maroney, 186 AD2d 1031).

We disagree with the trial court, however, that the amount of the costs, disbursements and expenses of $93,044.62 was reasonable and was necessarily incurred. Much unnecessary expense was incurred in support of the inflated appraisal submitted on behalf of defendants evaluating the value of the property taken at $2,070,400 (subsequently reduced by one of [1004]*1004defendants’ appraisers to the sum of $643,447). Further, "there is no indication that the court considered [all] the factors relevant to an award of counsel fees (see, Becker v Empire of Am. Fed. Sav. Bank, 177 AD2d 958) or made an award which is ' "reasonable in relation to the amount obtained” ’ (Becker v Empire of Am. Fed. Sav. Bank, supra, at 959, quoting Hensley v Eckerhart, supra, at 440)” (Burke v Crosson [appeal No. 2] 191 AD2d 998 [decided herewith]). We modify the judgment to award defendants the following amounts for costs, disbursements and expenses, which we find were reasonable and necessary "for the condemnee to achieve just and adequate compensation” (EDPL 701): legal fees of trial counsel — $20,000; legal fees of counsel of record — $8,000; expert fees (Stead & Assocs.) — $5,000; expert fees (Burgchardt & Assocs.) — $5,000; total fees — $38,000. (Appeal from Judgment of Supreme Court, Allegany County, Horey, J. — Additional Allowance.) Present — Pine, J. P., Fallon, Boomer, Davis and Boehm, JJ.

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—Judgment unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: In this action, brought under the EDPL to appropriate lands for a gas storage field, defendants were awarded a judgment, as reduced by this Court, of $57,301 (National Fuel Gas Supply Corp. v Smole, 174 AD2d 991). Plaintiff’s initial offer in settlement of the action was $28,736. We agree with the trial court that, because the award was substantially in excess of plaintiff’s initial offer, the court was empowered to award to defendants an additional amount "for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees actually incurred by” defendants (EDPL 701; see, County of Oswego v Maroney, 186 AD2d 1031).

We disagree with the trial court, however, that the amount of the costs, disbursements and expenses of $93,044.62 was reasonable and was necessarily incurred. Much unnecessary expense was incurred in support of the inflated appraisal submitted on behalf of defendants evaluating the value of the property taken at $2,070,400 (subsequently reduced by one of [1004]*1004defendants’ appraisers to the sum of $643,447). Further, "there is no indication that the court considered [all] the factors relevant to an award of counsel fees (see, Becker v Empire of Am. Fed. Sav. Bank, 177 AD2d 958) or made an award which is ' "reasonable in relation to the amount obtained” ’ (Becker v Empire of Am. Fed. Sav. Bank, supra, at 959, quoting Hensley v Eckerhart, supra, at 440)” (Burke v Crosson [appeal No. 2] 191 AD2d 998 [decided herewith]). We modify the judgment to award defendants the following amounts for costs, disbursements and expenses, which we find were reasonable and necessary "for the condemnee to achieve just and adequate compensation” (EDPL 701): legal fees of trial counsel — $20,000; legal fees of counsel of record — $8,000; expert fees (Stead & Assocs.) — $5,000; expert fees (Burgchardt & Assocs.) — $5,000; total fees — $38,000. (Appeal from Judgment of Supreme Court, Allegany County, Horey, J. — Additional Allowance.) Present — Pine, J. P., Fallon, Boomer, Davis and Boehm, JJ.

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191 A.D.2d 1003, 595 N.Y.S.2d 275, 1993 N.Y. App. Div. LEXIS 2962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-fuel-gas-supply-corp-v-cunningham-natural-gas-corp-nyappdiv-1993.

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