Malin v. State

— In a condemnation proceeding, the claimant Ann K. Malin appeals from an order of the Court of Claims (Silverman, J.), dated May 30, 1990, which denied her application for an additional allowance pursuant to EDPL 701. Ordered that the order is reversed, on the law, with costs, the application is granted, and the claimant is awarded an [900] additional allowance in the amount of $66,196.51, and the matter is remitted to the Court of Claims for entry of an appropriate judgment. On appeal, the claimant Ann K. Malin contends that she is entitled to additional allowance pursuant to EDPL 701 for litigation expenses in prosecuting her claim against the State. We agree. EDPL 701 now permits a discretionary additional allowance where the order or award is substantially in excess of the amount initially offered to the claimant by the State (Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 701, 708). In the instant case, the State initially offered the claimant $265,400 for the property in question. The court, however, determined that the claimant was entitled to an award of $475,000, plus interest. Under these circumstances, we find that the claimant has proven "more than a modest increase in value” (see, Governor’s Mem, L 1987, ch 771, 1987 McKinney’s Session Laws of NY, at 2724), and that, consequently, the award was substantially in excess of the amount initially offered to the claimant by the State (see, Done Holding Co. v State of New York, 169 AD2d 809; Karas v State of New York, 169 AD2d 816). Moreover, we find that the remaining requirement of EDPL 701 has been satisfied. In prosecuting this claim, it was uncontested that the claimant incurred legal and appraisal expenses in an amount totaling $66,196.51. As a result, the claimant has demonstrated that an award of an additional allowance is necessary "to achieve just and adequate compensation” (EDPL 701). Accordingly, we reverse the determination of the Court of Claims, which denied the claimant’s application, and award the claimant $66,196.51 to cover the legal fees and appraisal fees incurred with respect to her claim (see, EDPL 701). Bracken, J. P., Sullivan, Eiber and Pizzuto, JJ., concur.