In the Matter  of the Application of The City of New York,
relative to acquiring title in fee simple and  other
interests in certain real  property not heretofore acquired
for Powell's Cove Environmental Waterfront Park, Queens.

14010/00

SUPREME COURT OF NEW YORK, QUEENS  COUNTY

2009 NY  Slip Op 51948U; 2009 N.Y. Misc. LEXIS 2389


September 9, 2009, Decided

NOTICE:

THE LEXIS  PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE
RELEASE OF THE  FINAL PUBLISHED VERSION.    THIS OPINION IS UNCORRECTED AND 
 WILL
NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

COUNSEL: M.  Robert Goldstein, Esq., Goldstein Goldstein Rikon & Gottlieb 
PC,  New
York, NY.

Fred Kolikoff, Esq., City of NY Law Dept., Condemnation  Division, New 
York, NY.

JUDGES: Abraham G. Gerges, J.

OPINION BY:  Abraham G. Gerges

OPINION

Abraham G. Gerges,  J.

Upon the foregoing papers, in this condemnation  proceeding, claimant Cove
Properties, Inc. (Malba or claimant), moves for an  order, pursuant to 
Eminent
Domain Proceeding Law (EDPL) § 701, directing the  condemnor, the City of 
New
York (the City), to pay an additional allowance in  the amount $ 
1,280,945.47 for
attorneys' fees and expenses and $ 154,900 to  Ticor Title Insurance Company
(Ticor).

Facts and  Procedural BackgroundClaimant is the former owner of Block 3963,
Lot 110;  Block 3989, Lots 1, 20, and 25; Block 3990, Lot 75; Block 3991, 
Lot 1;
Block  3922, Lot 1, Block 3993, Lot 20; and Block 3994, Lots 1 and 21 in  
Queens
County. On February 7, 1996, the City acquired the property for the  
development
of Powell's Cove Environmental Waterfront  Park.

This proceeding generated extensive motion  practice since it was first
commenced in Queens County in 1995. Soon after  commencement, by cross 
motion
returnable December 20, 1995, New York State  (the State) sought dismissal 
of the
petition against it, arguing that it was  the owner of the property, that 
the
City lacked the power to condemn State  owned property and that the court 
did not
have jurisdiction over the State by  virtue of the State's sovereign 
immunity. By
order dated February 7, 1996,  the Honorable Edwin Kassoff permitted the 
City to
withdraw its petition as it  pertained to the State and the City's petition 
was
granted, subject to the  interest of State, if any.

After the case was  transferred to Kings County, claimant made a motion
seeking to compel the  City to make an advance payment, tracing its title 
back to
the Lovelace  Patent of 1670 and advancing several other theories upon 
which its
ownership  of the property could be premised. The City opposed that motion,
arguing that  it owned the property, tracing its title back to the Kieft 
Patent
of 1645,  the Nicolls Patent of 1666 and the Dongan Patent of 1685, which 
created
the  Town of Flushing. By decision and order dated October 30, 2001, the  
court
granted claimant's motion, concluding  that:

"[T]he court finds that Malba holds title to the  disputed parcels of 
property
on the grounds that its title can be traced back  to the Lovelace Patent of 
1670,
which conveyed the subject property to  Captain William Lawrence; that the 
deeds
dating back to 1824, pursuant to  which title to the subject property was
conveyed, evidence a valid chain of  title; even if the Lovelace Patent did 
not
convey the subject property to  Captain Lawrence, Malba and its 
predecessors in
interest have acquired title  by adverse possession of the property since 
1670;
and the City is  collaterally estopped from litigating the issue of title 
in this
proceeding,  having sought to intervene in [a prior related proceeding] on 
the
grounds  that it was the owner of an adjacent property, without raising the
argument  that it was the title holder of the subject  property."

(October 30, 2001 Decision, p 40-41). The  City filed a notice of appeal on
January 18, 2002 and withdrew the appeal by  letter dated June 24, 2002.

Thereafter, the City  persisted in its refusal to make an advance payment,
arguing that it would  not tender any money until claimant filed proof of 
title
acceptable to the  City and secured a release from the State. Accordingly,
claimant again moved  for an order compelling the City to make an advance 
payment
to it and to  comply with the October 30, 2001 decision. By decision dated
February 10,  2004, the court granted claimant's motion and the City was 
again
directed to  make an advance payment. Therein, the court reasoned, briefly
stated, that  the October 30, 2001 decision was law of the case and  
precluded
the  City from refusing to make an advance payment by seeking to force 
claimant
to  litigate the issue of whether the State held title to the property.  The
City's subsequent motion to reargue that decision was denied by order  and
decision dated August 6, 2004. The action was then transferred to this  
part.

The City then moved for an order of interpleader,  seeking to resolve the
issue of the interest in the property, if any, held by  the State. That 
motion
was denied by decision and order dated November 15,  2004, in which this 
court
held that the order vesting title to the property  in the City, subject to 
the
interest, if any, of the State that Judge Kassoff  signed must be 
interpreted as
an election by the City to forego litigating  the issue of the State's 
interest
in the property. Accordingly, in reliance  upon the doctrines of collateral
estoppel and law of the case, the City was  again ordered to make an advance
payment to  claimant.

Thereafter, the City paid claimant an advance  payment of $ 890,000, plus
interest in the amount of $ 392,600.55, for a  total of $ 1,272,600.55, and 
the
proceeding moved toward trial. In its  appraisal report, claimant relied 
upon an
appraisal report prepared by Daniel  Sciannameo of Albert Valuation Group 
of New
York, Inc., to value the property  at $ 10,000,000. This report was 
premised upon
the findings of an engineer  and an architect, both of whom appeared and
testified at trial. In reliance  upon an appraisal report prepared by Jerome
Haims, the City valued the  property at $ 890,000. By decision dated June 
30,
2006, claimant's motion for  permission to file an amended appraisal report 
was
denied. After a four day  non-jury trial that took place on July 12, 14, 17 
and
18, 2006, by decision  dated February 15, 2007, this court awarded claimant 
$
9,067,480, plus  interest.

On settlement of the order, claimant  submitted papers including a 
memorandum
of law in which it contended that it  should be awarded statutory interest 
at the
rate of 6%, compounded annually,  since simple interest would not provide 
just
compensation because of the  extended period of time during which the 
instant
action was litigated. The  City opposed that application. By final decree 
issued
on June 7, 2007, this  court awarded claimant interest, compounded 
annually. The
City filed a Notice  of Appeal dated June 28, 2007, perfected the appeal and
served and filed its  appellant's brief early in 2008. After it was served 
with
respondent's brief  on April 23, 2008, the City withdrew its appeal.

At the  time that it took its appeal, the City deposited funds representing
the award  due with the court in an attempt to stop the running of 
interest. By
decision  dated September 19, 2007, this court held that depositing the
condemnation  award, plus interest, into the court did not serve to toll the
accrual of  interest and granted claimant a judgment declaring that 
statutory
interest  continued to run on the award at the rate of 6% per year,  
compounded
annually, from the vesting of title on February 29, 1996 until  such time 
as the
date of availability of payment, or until further order of  this court or 
of the
Appellate Division, Second Department, otherwise  directs.

Further, the City deposited the funds with the  court in the name of Malba,
despite  the fact that the funds had been  assigned to various members of 
the
Golia family, as the owners of Malba. That  the award was so assigned is
supported in an affidavit submitted by Rosalie  Grecco, a shareholder of
claimant; proof of the assignment was allegedly  provided to the City. This
resulted in the need for another motion to direct  the payment of the funds
deposited with the court to the assignees. When the  award was collected on
November 8, 2008, claimant received $ 18,953,346.72,  of which $ 
9,885,466.72
represented interest. Another motion followed to  determine the amount of
interest payable to the IRS, which motion was settled  before it reached the
court.

Claimant's  Contentions

In support of its motion, claimant relies  upon an affirmation from counsel,
who has been personally involved in this  matter for 13 years, since the 
firm of
Goldstein, Goldstein & Rikon,  P.C., as predecessor in interest to 
Goldstein,
Goldstein, Rikon &  Gottlieb, P.C. (the Firm), was retained on February 29, 
1996.
By written  retainer dated March, 1996, claimant agreed to pay the Firm 
"four
(4%)  percent of the total award and interest that may be made or the 
amount  paid
for said property. The attorneys' fee shall be computed on the gross  amount
recovered. The client shall pay any and all expenses, disbursements,  
appraisers
and experts fees." By letter agreement dated November 19, 2002,  the fee was
increased to 6% of the total award and interest to reflect the  increased 
amount
of work performed. Claimant argues that it is entitled to  recover this 
fee, or $
1,137,280, plus expenses incurred, pursuant to EDPL  701. The City 
ultimately
paid claimant and claimant paid this  fee.

In another affidavit, Mr. Sciannameo alleges that  he prepared an appraisal
report and a rebuttal report for Malba and he  testified at trial; he 
charged $
75,125 for his services. Paul Bonfilio, an  architect, submits an affidavit 
in
which he alleges that he was retained by  claimant to prepare a report with
regard to the probability that the City  would demap paper streets and to 
testify
at trial; he charged $ 5,545.81.  Ronald Ogur, a professional engineer, 
submits
an affidavit in which he  alleges that he was retained by Malba to prepare
alternate plans for  development of the property, taking into consideration
applicable Zoning  resolutions, and to testify at trial; he charged $ 
44,250.
Claimant thus  argues that it should be awarded an additional allowance of $
124,920.81 to  pay these expenses. The Firm also seeks to receive an 
additional
allowance of  $ 18,744.66 for expenses incurred, i.e, $ 1,665 for faxes, $
1,220.88 for  FedEx; $ 878.88 for postage; $ 2,392.08 for filing fees; $ 
165  for
messengers; $ 220 for certified deeds; $ 50 for a tax warrant; $ 4,564  for 
a
court reporter; $ 5 for a corporation status search; $ 728.29 for  Lexis
research; $ 1,986.65 for travel; and $ 4,868.88 for  photocopies.

Claimant also argues that in addition to  being directed to pay the fees and
expenses incurred by the Firm, the City  should be ordered to pay $ 154,900 
for
legal services provided by  Kirschenbaum & Kirschenbaum, P.C. 
(Kirschenbaum), the
firm that appeared  for claimant on behalf of Ticor, Malba's title insurance
company, when the  City contested title. In an affirmation from Samuel
Kirschenbaum, who had  been a senior  partner in that firm, Mr. Kirschenbaum
avers that he  personally handled the matter, which involved complex legal 
and
title issues,  and that he billed his time at $ 400 an hour. Claimant's 
request
for  attorneys' fees billed by Kirschenbaum is supported by what Mr.  
Kirschenbaum
alleges are contemporaneously prepared billing statements.  Kirschenbaum 
was paid
as provided in the policy of insurance.

The  City's Contentions

In opposition, the City concedes  that the award that claimant received was
"substantially in excess of the  amount of the condemnor's proof," i.e., 
"several
million dollars over the  amount of the City's appraisal and more than 
double the
amount of the City's  appraisal." The City similarly concedes that an 
additional
award is required  to achieve just and adequate compensation. The City
accordingly does not  contest claimant's entitlement to the award of an
additional allowance  pursuant to EDPL 701.

The City argues, however, that an  award of attorneys' fees in the amount of
6% of the gross amount paid for the  property is not reasonable. More
specifically, the City contends that the  court is not bound to award fees
pursuant to claimant's retainer agreement  with counsel. The City further 
argues
that the Firm is not entitled to  receive 6% of the interest awarded, since
interest is not obtained through  the efforts of counsel, but is self 
generated
by operation of law. The City  therefore concludes that even assuming that
claimant is entitled to recover  attorneys' fees pursuant to its agreement 
with
counsel, the award should be  limited to $ 544,048.80, or 6% of the award 
of $
9,067,480, before interest  was added.

The City also contends that the fees paid to  Ticor are not compensable, 
since
the EDPL provides only for an award of costs  to the condemnor. Further, the
court should not award claimant $ 728.29 for  Lexis research, since this sum
should be subsumed in counsel's fee because  legal research "is part and 
parcel
of an attorney's representation of a  client." The City also argues that 
claimant
should not be awarded any sum for  travel expenses, since there is no 
evidentiary
basis to support the claim  that $ 2,000 was expended, particularly since 
the
Firm maintains its offices  in Manhattan and the action was litigated  in
Brooklyn.

The City thus concludes that claimant's  motion should be denied to the 
extent
that it seeks attorneys' fees in excess  of $ 544,048.80, fees to be paid to
Ticor in the amount of $ 154,900, Lexis  research billed at $ 728.29 and 
travel
expenses in the amount of $  1,986.65.

The Law

" EDPL 701 1 assures that a  condemnee receives a fair recovery by providing
an opportunity for condemnees  whose property has been substantially 
undervalued
to recover the costs of  litigation establishing the inadequacy of the
condemnor's offer'" (Town of  Islip v Sikora, 220 AD2d 434, 437, 632 
N.Y.S.2d 160
[1995], quoting Hakes v  State of New York, 81 NY2d 392, 397, 615 N.E.2d 
982, 599
N.Y.S.2d 498  [1993]). In interpreting this provision, it has been held 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, 81 NY2d at 397). The statute is intended to 
permit a
condemnee  to "recover a wider array of litigation costs, including 
attorney,
appraiser  and engineering fees" (General Crushed Stone Co. v State, 93 
NY2d 23,
27, 709  N.E.2d 463, 686 N.Y.S.2d 754 [1999]; see also Matter of City of 
New York
, 52  AD3d 387, 388, 860 N.Y.S.2d 85 [2008]; City of Yonkers, 221 AD2d 437, 
 438,
633 N.Y.S.2d 578 [1995], lv denied 87 NY2d 812, 666 N.E.2d 1059, 644  
N.Y.S.2d
145 [1996]).

- - - - - - - - - - - - - - Footnotes - - - - -  - - - - - - - - - -1   
EDPL 701
provides  that:

" In instances where the order or award is  substantially in excess of the
amount of the condemnor's proof and where  deemed necessary by the court 
for the
condemnee to achieve just and adequate  compensation, the court, upon
application, notice and an opportunity for  hearing, may in its discretion, 
award
to the condemnee an additional amount,  separately computed and stated, for
actual and necessary costs, disbursements  and expenses, including 
reasonable
attorney, appraiser and engineer fees  actually incurred by such condemnee. 
The
application shall include affidavits  of the condemnee and all parties that 
have
incurred expenses on the  condemnee's behalf, setting forth inter alia the 
amount
of the expenses  incurred."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -  -

It is also well settled, however, that where costs  are expended to develop
and present valuation theories to support a claim for  compensation 
substantially
in excess of what the court awarded, the court  should exercise its 
discretion
and award additional amounts substantially  less than what claimant asks 
(see
e.g. China Plaza Co. v City of New York (In  re City of New York), 254 AD2d 
210,
679 N.Y.S.2d 571 [1998]; accord In re  Acquisition of Real Prop. by Village 
of
Johnson City, 277 AD2d 773, 775, 715  N.Y.S.2d 775 [2000] [considering that 
the
ultimate award exceeded  petitioner's initial appraisal by less than 20% 
and that
a substantial part  of claimant's counsel and appraisal fees were expended 
in an
effort to  achieve an inflated value and propounding valuation theories 
that  were
totally rejected by the trial court, the record supported a finding that  
the
claimed expenses were not necessarily incurred to achieve just and  adequate
compensation]). Similarly, EDPL 701 also "vests the trial court with  
discretion,
in order to limit both the incentive for frivolous litigation and  the cost 
of
acquiring land through eminent domain'" (Town of Islip, 220 AD2d  at 437, 
quoting
Hakes, 81 NY2d at 397).

As is also  relevant herein and as was recognized by this court in a 
previous
decision,  In re City of New York (1 Misc 3d 911A, 781 N.Y.S.2d 623, 2003 
NY Slip
Op  51645U [2003]):

"[I]t is now well settled that  contingency fee arrangements are an 
acceptable
factor to be considered by the  courts in determining reasonable counsel 
fees (
see e.g. Hoffman v Town of  Malta, 189 AD2d 968, 969, 592 N.Y.S.2d 503;
Application of New York City  Transit Auth., 150 Misc 2d at 921 [the Law 
Revision
Commission to the 1987  Legislature stated that the courts can decide on a
case-by-case basis whether  a contingent fee arrangement is reasonable 
under EDPL
701 (1987 Report of NY  Law Rev Commn, 1987 McKinney's Session Laws of NY, 
at
2007-2012)]). Further,  it has been recognized that:

"however "reasonable" the  contingent fee may be from the client's 
standpoint
or enforceable between the  parties under contract law, a fee sought by 
means of
§ 701 is one to be paid  by the condemnor from public funds without any 
input
into the terms of the  retainer. Condemnees may not set the standard  of
reasonableness.'"

"(In re New York State Urban  Dev., 183 Misc 2d 900, 904, 707 N.Y.S.2d 593;
accord Application of New York  City Transit Auth., id.). Thus, while a
contingency retainer may be  appropriately considered on a fee application 
under
§ 701, the court is not  necessarily bound by its terms' (In re New York 
State
Urban Dev., 183 Misc 2d  at 904, citing City of Yonkers v Celwyn Co., 221 
AD2d
437, 438, 633 N.Y.S.2d  578, lv denied 87 NY2d 812, 666 N.E.2d 1059, 644  
N.Y.S.2d
145)."

(In re City of New York, 1 Misc 3d  911A, 4-5; accord Matter of City of New
York v Jamaica Arms Hotel, 44 AD3d  1040, 1041, 845 N.Y.S.2d 796 [2007] [the
trial court was not bound by a  contingency fee retainer agreement entered 
into
by the claimant for  representation in the prior appeal; it was only 
required to
assess reasonable  attorney's fees]). In that decision, this court went on 
to
note that  contingency fees in amounts of up to one-third of the award have 
been
upheld  by the court (id. at 5, citing Application of New York Convention 
Ctr.
Dev.,  234 AD2d 167, 651 N.Y.S.2d 479 [25% of the total recovery]; City of
Yonkers,  221 AD2d 437, 633 N.Y.S.2d 578 [one half of the amount requested
pursuant to  the sliding-scale contingency retainer agreement was found to 
be
reasonable];  Hoffman, 189 AD2d 968, 592 N.Y.S.2d 503 [contingency fee of 
25% of
the award  was reasonable]; In re New York State Urban Dev., 183 Misc 2d 
900,  707
N.Y.S.2d 593 [10% of the award representing the advance payment,  including
interest, was found to be reasonable, which sum was 50% of the 20%  
contingency
provided in retainer agreement]; see also Meyers v State, 166  Misc 2d 586, 
589,
634 N.Y.S.2d 642 [1995] [the court rejected an attorneys'  fee of 50% of any
monies recovered above the State's advance payment, as  provided in 
claimant's
retainer agreement, and instead found that a one-third  fee of the award, 
without
interest, was an appropriate starting point for  determining a proper 
additional
allowance for attorneys'  fees]).

Similarly, it has been recognized that "[s]ince  the advance payments . . .
were essentially self-generated by the condemnor  it cannot be seriously
contended that the  costs . . . incurred by such  condemnee' were 
necessary' for
the production of the [award received]" (In re  New York State Urban Dev. 
Corp.,
183 Misc 2d at 905; accord In re City of New  York, 2003 NY Slip Op 51645U 
at 6).
With regard to the issue of whether a  claimant is entitled to an award of
attorneys' fees premised upon the final  award, including interest, it has 
been
held, in interpreting Condemnation Law  § 16(2), the predecessor to EDPL 
701,
that "[t]he court erred . . . in  computing the additional allowance upon 
the
interest of the award as well as  upon the award itself" (New York State 
Urban
Dev. Corp. v Goldfeld, 54 AD2d  1099, 1100, 389 N.Y.S.2d 63 [1976], citing 
Matter
of County of Westchester v  Baruch, 247 NY 398, 401, 160 N.E. 654 [1928]; 
Matter
of Schmieder, 130 Misc  136, 142, 223 N.Y.S. 529 [1927]; Matter of Board of 
Water
Supply of City of  New York, 75 Misc 150, 151, 133 N.Y.S. 213 [1912]; 
accord In
re City of New  York, 2003 NY Slip Op 51645U at 6 [it is well settled that 
an
award of  attorneys' fees should not be calculated including those portions 
of an
award  that represent the interest awarded, since those sums are not  
obtained
through the efforts of counsel, but are self generated by operation  of 
law]). In
contrast, however, it has also been held that an award of a  contingency 
fee in
the amount of 33% of the difference between the court's  award, with accrued
interest, and the defendant's advance payment, was proper  and reasonable, 
given
the amount of time and labor required, the difficulty  of the issues 
presented,
the level of skill required of this matter, the  benefit resulting to 
claimant
from the attorney's skill and the results  obtained (Carbone v State of New 
York,
13 Misc 3d 1246A, 831 N.Y.S.2d 358,  2006 NY Slip Op 52364U [2006]; see 
also In
re Edgecombe Road, 128 AppDiv 432,  436, 112 N.Y.S. 845 [1908], affd 194 NY 
545,
87 N.E. 1118 [1909] [since  petitioner was entitled to one-half of the 
award, he
was entitled to it as of  the date when the property was taken, so that he 
was
entitled to interest on  it until the same was paid]).

As is also relevant in  resolving the instant dispute, it is well settled 
that
in determining the  appropriate amount of attorneys' fees to be awarded, it 
must
be recognized  that:

"Long and universal tradition in American  practice is for attorneys' fees 
to
be determined on the following factors:  the time and labor required; the
difficulty of the questions involved, and  the skill required to handle the
problems presented; the lawyer's experience,  ability and reputation; the 
amount
involved and the benefit resulting to the  client from the services; the
customary fee charged for similar services; the  contingency or certainty of
compensation; the results obtained; and the  responsibility involved. (See,
Matter of Freeman, 34 NY2d 1, 9, 311 N.E.2d  480, 355 N.Y.S.2d 336 [1974]; 
Matter
of Siegel, 169 Misc 2d 620, 621, 646  N.Y.S.2d 760 [Sup Ct, Queens County 
1996];
see also, Matter of New York City  Tr. Auth., 150 Misc 2d 917, 572 N.Y.S.2d 
613
[Sup Ct, Queens County 1991];  Matter of New York State Urban Dev. Corp., 
183
Misc 2d 900, 707 N.Y.S.2d 593  [Sup Ct, NY County 2000].)"

(Dillon v Marelli, 185 Misc  2d 461, 464-465, 713 N.Y.S.2d 449  [2000])

Discussion

Herein, the court finds that  claimant is entitled to recover the full 
amount
of  attorneys' fees  sought by the Firm. In so holding, the court 
recognizes that
this matter was  extensively litigated from its inception. Most 
significantly,
the above  summary of the procedural history reveals that the City refused 
to
make an  advance payment as required by the statute (see generally EDPL 
301, 303
and  304) and repeatedly fought claimant's attempts to obtain payment. In  
this
regard, claimant was compelled to make a motion seeking to obtain an  
advance
payment because the City claimed that it owned the property, arguing  that 
its
claim of ownership could be traced to colonial patents dating back  to 
1645. The
41 page decision rendered by the court, which rejected the  City's claims 
and
found that claimant's ownership of the property could be  traced to a 
colonial
patent dating back to 1670, as well as finding the  claimant's ownership 
could be
support by numerous alternative theories,  clearly reveals the difficult and
complex legal issues raised in this  proceeding. Thereafter, claimant was 
forced
to make an additional motion  seeking to compel the City to make an advance
payment and to oppose yet  another motion in which the City sought to avoid 
its
obligation to make a  payment by forcing claimant to litigate the issue of
whether the State held  an interest in the property. Since both of these 
motions
were decided in  claimant's favor, premised upon the doctrines of collateral
estoppel and law  of the case, the City's position can also be said to have
bordered on  frivolous. After tendering an advance payment, the City 
continued to
oppose  claimant's efforts to obtain just compensation and ultimately tried 
the
case  in reliance upon an appraisal that valued the property at less than
one-tenth  of the amount awarded to claimant.

The court also notes  that claimant did not receive an advance payment until
June 2005, almost ten  years after title vested in the City and only after 
the
three motions  discussed above were decided in claimant's favor. 
Accordingly, the
City  cannot, and in fact does not, argue that the Firm should not be 
entitled  to
recover 6% of the advance payment, since it is beyond dispute, under  the
circumstances of this case, that the advance payment was not  
self-generated by
operation of law. Further, when the final award was  collected on November 
8,
2008, claimant was awarded $ 9,067,480, plus  interest in the amount of $
9,885,466.72. The award of interest therefore  exceeded the principal of the
award by over $ 800,000 because the City  delayed payment by approximately 
12
years. Accordingly, the court also finds  that the award of attorneys' fees
should be calculated upon the amount of  interest awarded, since the Firm 
was
deprived of use of its fee, which would  have been received years earlier 
if the
City had compensated claimant in a  timely fashion. In addition, the court
recognizes that the Firm submitted a  memorandum of law that convinced this 
court
to award interest, compounded  annually, instead of simple interest, so 
that the
interest awarded was  similarly not self generated. 2

- - - - - - - - - - - - - - Footnotes - -  - - - - - - - - - - - - -2   In 
so
holding, the court also  notes that the earlier cases decided pursuant to
Condemnation Law § 16 are  distinguishable, since that statute provided 
that the
court could allow a  defendant to recover "an additional allowance of 
costs, not
exceeding five  per centum upon the amount awarded" (see generally 
Westchester
County v  Baruch, 247 NY 398, 400, 160 N.E. 654 [1928] [emphasis added]). 
The
court's  discretion to award an additional allowance pursuant to EDPL 701 
is not
so  limited.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -  -

Accordingly, in view of the procedural history of  this case, where claimant
prevailed on every motion seeking to compel  payment; claimant ultimately
obtained an award that was over $ 8,000,000 more  than the City's offer; 
and the
City delayed in making both an advance payment  and a final payment in a 
timely
fashion, the court concludes that the Firm is  entitled to recover an 
additional
sum pursuant to EDPL 701, equal to 6% of  the total amount received by 
claimant,
including the interest paid thereon,  particularly in view of the above 
cited
cases that awarded a contingency fee  of up to 33%.

The court also awards claimant the $  7,125 billed by Mr. Sciannameo for the
preparation of appraisal reports and  for his testimony at trial; the $ 
5,545.81
billed by Mr. Bonfilio for the  preparation of his report and for his 
testimony
at trial regarding the  demapping of the paper streets; and the $ 44,500 
billed
by Mr. Ogur for the  preparation of the development plans and for his 
testimony
at trial. In so  holding, the court notes that the City does not contest the
necessity of  retaining these experts, nor the reasonableness of the  
expenses.

The court declines, however, to award the $  728.29 that the Firm alleges 
was
expended for computer research. It this  regard, it has been held that " 
computer
research is merely a substitute for  an attorney's time that is compensable 
under
an application for attorney's  fees and is not a separately taxable cost'" (
Noghrey v Town of Brookhaven,  17 Misc 3d 1102A, 851 N.Y.S.2d 59, 2007 NY 
Slip Op
51798U, 7 [2007], quoting  United States v Merritt-Meridan Constr., 95 F3d 
153,
173 [1996 ], citing BD v  DeBuono, 177 FSupp2d 201 [2001]). Similarly, the 
court
declines to award  counsel the $ 1,986.65 that the Firm alleges that it 
expended
in travel  expenses, since counsel fails to submit any evidentiary 
corroboration
to  justify such an award. In this regard, the court finds that if  counsel
intended to seek to recover expenses incurred, it was incumbent upon  it to
retain sufficient billing records to support its  demand

The court further finds that Ticor is entitled  to recover the attorneys' 
fees
incurred in refuting the City's contention  that claimant did not hold 
title to
the property, since claimant succeeded in  establishing that it owned the
property on numerous theories. In this regard,  it is well settled that 
"[t]he
doctrine of subrogation "allows an insurer to  stand in the shoes of its 
insured
and seek indemnification from third parties  whose wrongdoing has caused a 
loss
for which the insurer is bound to  reimburse"'" (Spectra Audio Research v 
Chon,
62 AD3d 561, 563, 880 N.Y.S.2d  612 [2009], quoting Duane Reade v Reva 
Holding,
30 AD3d 229, 232, 818  N.Y.S.2d 9 [2006], quoting Kaf-Kaf v Rodless 
Decorations,
90 NY2d 654, 660,  687 N.E.2d 1330, 665 N.Y.S.2d 47 [1997]). Accordingly, 
having
successfully  defended claimant's position in accordance with its title 
insurance
policy,  Ticor is subrogated to claimant's rights.  Further, given the  
complexity
of the issues raised by the City's challenge to title, it is  evident that 
if
Ticor did not defend the claim, the Firm would have been  compelled to 
trace the
title and draft the papers opposing the motion. In  view of the number of 
hours
billed by Kirschenbaum, it must be presumed that  if the Firm had to 
perform the
legal services rendered by Ticor, it would  have sought to increase its fee 
to
compensate for this unanticipated motion  practice.

The court therefor concludes that Ticor is  entitled to recover reasonable
attorneys' fees. The court further finds,  however, that on the papers now 
before
it, it cannot determine if Ticor's  demand for fees in the amount of $ 
154,900 is
reasonable. More specifically,  the court notes that this fees includes 
over 100
hours billed for  consultations with the client; at a billing rate of $ 400 
per
hour, this  increased the cost of legal services provided by more than $ 
40,000.
The  bills annexed to the moving papers, however, fail to offer any details 
 with
regard to why such extensive consultation was needed. In addition, the  
remaining
entries, which bill for research, letters, reviewing documents,  etc., 
without
offering any details with regard to services performed, are  also lacking 
in the
specificity needed to determine if the amount billed is  reasonable. Thus, 
the
amount of reasonable attorneys' fees incurred by Ticor  in representing 
claimant
in connection with the City's challenge to its  ownership is referred to a
Judicial Hearing  Officer.

Conclusion

For the above stated  reasons, claimant's motion is granted to the extent of
awarding an additional  allowance in the amount of $ 1,278,230.53 ($ 
1,280,945.47
- $ 728.29 - $  1,986.65), representing attorneys' fees, appraisal fees,
engineering fees,  architectural fees and other reasonable expenses 
incurred.
Ticor is awarded  an additional allowance for attorneys' fees incurred, the
reasonable amount  of which shall be determined at a hearing. Pursuant to 
Article
22 of the  Judiciary Law, in accordance with the provisions of Part 122 of 
the
Rules of  the Chief Administrator of the Courts (NYCRR Part 122), this 
issue  is
assigned to the Judicial Hearing Officer in the JHO Part, to hear and  
determine
if the parties so agree in writing, or to hear and report if they  do not 
agree.
The date of the hearing will be fixed by the Clerk of the  Part.

The foregoing constitutes the decision and order  of the court.