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

—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 defendants’ 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.