IN RE: CITY OF NEW YORK

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

IN RE: CITY OF NEW YORK, etc., Eastside Corporation, Claimant-Appellant-Respondent, v. The City of New York, Condemnor-Respondent-Appellant.

Decided: June 19, 2008

MAZZARELLI, J.P., ANDRIAS, WILLIAMS, RENWICK, JJ. Certilman Balin Adler & Hyman, LLP, East Meadow (M. Allan Hyman of counsel), for appellant-respondent. Michael A. Cardozo, Corporation Counsel, New York (Holly R. Gerstenfeld of counsel), for respondent-appellant.

Order and judgment (one paper), Supreme Court, New York County (Leland G. DeGrasse, J.), entered October 3, 2007, awarding claimant $541,919.17 as an additional allowance for costs pursuant to Eminent Domain Procedure Law § 701, and bringing up for review an order, same court and Justice, entered July 18, 2007, which, insofar as appealed from as limited by the briefs, granted claimant's motion for attorney fees to the extent of awarding $485,955 as a percentage of the principal condemnation award and for appraisal fees in the sum of $44,469.21, unanimously affirmed, without costs.

 Given that the condemnation award was “substantially in excess of the amount of the condemnor's proof,” reimbursement of claimant's attorney fees incurred in establishing the inadequacy of the condemnor's offer was necessary for claimant “to achieve just and adequate compensation,” and the award of $485,955 in attorney fees was reasonable (EDPL 701;  see generally Hakes v. State of New York, 81 N.Y.2d 392, 396-397, 599 N.Y.S.2d 498, 615 N.E.2d 982 [1993];  Matter of New York State Urban Dev. Corp., 183 Misc.2d 900, 903-904, 707 N.Y.S.2d 593 [2000] ).   The award of appraisal fees was proper for the same reasons.   The court was not bound by claimant's retainer agreement with counsel, which provided for attorney fees to be calculated as a percentage of the interest portion of the award, as well as the principal;  it was required only to assess reasonable attorney fees (see EDPL 701).