MADOWITZ v. STATE (2001)

Supreme Court, Appellate Division, Second Department, New York.

Leon MADOWITZ, Respondent, v. STATE of New York, Appellant.

Decided: November 26, 2001

WILLIAM D. FRIEDMANN, J.P., NANCY E. SMITH, THOMAS A. ADAMS and BARRY A. COZIER, JJ.

Eliot Spitzer, Attorney-General, New York, N.Y. (Peter H. Schiff and Patrick Barnett-Mulligan of counsel), for appellant. Flower, Medalie & Markowitz, Bay Shore, N.Y. (Edward Flower and Alan Wasser of counsel), for respondent.

In a claim to recover damages for the appropriation of real property, the defendant appeals from a judgment of the Court of Claims (Silverman, J.), dated December 27, 2000, which awarded the claimant the principal sum of $79,787.50 as an additional allowance pursuant to EDPL 701 for attorneys' and experts' fees.

ORDERED that the judgment is affirmed, with costs.

The State of New York's offer to the claimant for taking one portion of his property and a temporary easement over his remaining property was $22,400, but the claimant was awarded $154,950 (see, Madowitz v. State of New York, 288 A.D.2d 442, 733 N.Y.S.2d 686 [decided herewith] ). The sum awarded to the claimant was substantially higher than the State's offer. Therefore, the Court of Claims providently exercised its discretion in awarding the claimant an additional allowance of $79,787.50 for attorneys' and experts' fees (see, EDPL 701; Hakes v. State of New York, 81 N.Y.2d 392, 397-398, 599 N.Y.S.2d 498, 615 N.E.2d 982).

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