SUPREME COURT OF NEW YORK, QUEENS COUNTY
2009 NY Slip Op 51948U; 24 Misc. 3d 1251A; 899 N.Y.S.2d 58;
2009 N.Y. Misc. LEXIS 2389
September 9, 2009, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTEDOFFICIAL REPORTS.
PUBLISHED IN TABLE FORMAT IN THE NEW YORK SUPPLEMENT.
PRIOR HISTORY: Matter of City of New York, 17 Misc. 3d 715, 842 N.Y.S.2d 707,2007 N.Y. Misc. LEXIS 6418 (2007)
Eminent Domain--Litigation Expenses.
COUNSEL: M. Robert Goldstein, Esq., Goldstein Goldstein Rikon & Gottlieb PC, NewYork, NY.
Fred Kolikoff, Esq., City of NY Law Dept., Condemnation Division, New York, NY.
JUDGES: Abraham G. Gerges, J.
OPINION BY: Abraham G. Gerges
Abraham G. Gerges, J.
Upon the foregoing papers, in this condemnation proceeding, claimant CoveProperties, Inc. (Malba or claimant), moves for an order, pursuant to EminentDomain Proceeding Law (EDPL) Â§ 701, directing the condemnor, the City of NewYork (the City), to pay an additional allowance in the amount $ 1,280,945.47 forattorneys' fees and expenses and $ 154,900 to Ticor Title Insurance Company(Ticor).
Facts and Procedural Background
Claimant 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, theCity acquired the property for the development of Powell's Cove EnvironmentalWaterfront Park.
This proceeding generated extensive motion practice since it was firstcommenced in Queens County in 1995. Soon after commencement, by cross motionreturnable December 20, 1995, New York State (the State) sought dismissal of thepetition against it, arguing that it was the owner of the property, that theCity lacked the power to condemn State owned property and that the court did nothave jurisdiction over the State by virtue of the State's sovereign immunity. Byorder dated February 7, 1996, the Honorable Edwin Kassoff permitted the City towithdraw its petition as it pertained to the State and the City's petition wasgranted, subject to the interest of State, if any.
After the case was transferred to Kings County, claimant made a motionseeking to compel the City to make an advance payment, tracing its title back tothe Lovelace Patent of 1670 and advancing several other theories upon which itsownership of the property could be premised. The City opposed that motion,arguing that it owned the property, tracing its title back to the Kieft Patentof 1645, the Nicolls Patent of 1666 and the Dongan Patent of 1685, which createdthe Town of Flushing. By decision and order dated October 30, 2001, the courtgranted claimant's motion, concluding that:
"[T]he court finds that Malba holds title to the disputed parcels of propertyon 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 deedsdating back to 1824, pursuant to which title to the subject property wasconveyed, evidence a valid chain of title; even if the Lovelace Patent did notconvey the subject property to Captain Lawrence, Malba and its predecessors ininterest have acquired title by adverse possession of the property since 1670;and the City is collaterally estopped from litigating the issue of title in thisproceeding, having sought to intervene in [a prior related proceeding] on thegrounds that it was the owner of an adjacent property, without raising theargument that it was the title holder of the subject property."
(October 30, 2001 Decision, p 40-41). The City filed a notice of appeal onJanuary 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 titleacceptable to the City and secured a release from the State. Accordingly,claimant again moved for an order compelling the City to make an advance paymentto it and to comply with the October 30, 2001 decision. By decision datedFebruary 10, 2004, the court granted claimant's motion and the City was againdirected to make an advance payment. Therein, the court reasoned, brieflystated, that the October 30, 2001 decision was law of the case and precludedthe City from refusing to make an advance payment by seeking to force claimantto litigate the issue of whether the State held title to the property. TheCity's subsequent motion to reargue that decision was denied by order anddecision dated August 6, 2004. The action was then transferred to this part.
The City then moved for an order of interpleader, seeking to resolve theissue of the interest in the property, if any, held by the State. That motionwas denied by decision and order dated November 15, 2004, in which this courtheld that the order vesting title to the property in the City, subject to theinterest, if any, of the State that Judge Kassoff signed must be interpreted asan election by the City to forego litigating the issue of the State's interestin the property. Accordingly, in reliance upon the doctrines of collateralestoppel and law of the case, the City was again ordered to make an advancepayment to claimant.
Thereafter, the City paid claimant an advance payment of $ 890,000, plusinterest in the amount of $ 392,600.55, for a total of $ 1,272,600.55, and theproceeding moved toward trial. In its appraisal report, claimant relied upon anappraisal report prepared by Daniel Sciannameo of Albert Valuation Group of NewYork, Inc., to value the property at $ 10,000,000. This report was premised uponthe findings of an engineer and an architect, both of whom appeared andtestified at trial. In reliance upon an appraisal report prepared by JeromeHaims, 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 wasdenied. After a four day non-jury trial that took place on July 12, 14, 17 and18, 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 memorandumof law in which it contended that it should be awarded statutory interest at therate of 6%, compounded annually, since simple interest would not provide justcompensation because of the extended period of time during which the instantaction was litigated. The City opposed that application. By final decree issuedon June 7, 2007, this court awarded claimant interest, compounded annually. TheCity filed a Notice of Appeal dated June 28, 2007, perfected the appeal andserved and filed its appellant's brief early in 2008. After it was served withrespondent's brief on April 23, 2008, the City withdrew its appeal.
At the time that it took its appeal, the City deposited funds representingthe award due with the court in an attempt to stop the running of interest. Bydecision dated September 19, 2007, this court held that depositing thecondemnation award, plus interest, into the court did not serve to toll theaccrual of interest and granted claimant a judgment declaring that statutoryinterest continued to run on the award at the rate of 6% per year, compoundedannually, from the vesting of title on February 29, 1996 until such time as thedate of availability of payment, or until further order of this court or of theAppellate 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 theGolia family, as the owners of Malba. That the award was so assigned issupported in an affidavit submitted by Rosalie Grecco, a shareholder ofclaimant; proof of the assignment was allegedly provided to the City. Thisresulted in the need for another motion to direct the payment of the fundsdeposited with the court to the assignees. When the award was collected onNovember 8, 2008, claimant received $ 18,953,346.72, of which $ 9,885,466.72represented interest. Another motion followed to determine the amount ofinterest payable to the IRS, which motion was settled before it reached thecourt.
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 ofGoldstein, 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 paidfor said property. The attorneys' fee shall be computed on the gross amountrecovered. The client shall pay any and all expenses, disbursements, appraisersand experts fees." By letter agreement dated November 19, 2002, the fee wasincreased to 6% of the total award and interest to reflect the increased amountof 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 ultimatelypaid claimant and claimant paid this fee.
In another affidavit, Mr. Sciannameo alleges that he prepared an appraisalreport 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 inwhich he alleges that he was retained by claimant to prepare a report withregard to the probability that the City would demap paper streets and to testifyat trial; he charged $ 5,545.81. Ronald Ogur, a professional engineer, submitsan affidavit in which he alleges that he was retained by Malba to preparealternate plans for development of the property, taking into considerationapplicable 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 additionalallowance 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 formessengers; $ 220 for certified deeds; $ 50 for a tax warrant; $ 4,564 for acourt reporter; $ 5 for a corporation status search; $ 728.29 for Lexisresearch; $ 1,986.65 for travel; and $ 4,868.88 for photocopies.
Claimant also argues that in addition to being directed to pay the fees andexpenses incurred by the Firm, the City should be ordered to pay $ 154,900 forlegal services provided by Kirschenbaum & Kirschenbaum, P.C. (Kirschenbaum), thefirm that appeared for claimant on behalf of Ticor, Malba's title insurancecompany, when the City contested title. In an affirmation from SamuelKirschenbaum, who had been a senior partner in that firm, Mr. Kirschenbaumavers that he personally handled the matter, which involved complex legal andtitle issues, and that he billed his time at $ 400 an hour. Claimant's requestfor attorneys' fees billed by Kirschenbaum is supported by what Mr. Kirschenbaumalleges are contemporaneously prepared billing statements. Kirschenbaum was paidas 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., "severalmillion dollars over the amount of the City's appraisal and more than double theamount of the City's appraisal." The City similarly concedes that an additionalaward is required to achieve just and adequate compensation. The Cityaccordingly does not contest claimant's entitlement to the award of anadditional allowance pursuant to EDPL 701.
The City argues, however, that an award of attorneys' fees in the amount of6% of the gross amount paid for the property is not reasonable. Morespecifically, the City contends that the court is not bound to award feespursuant to claimant's retainer agreement with counsel. The City further arguesthat the Firm is not entitled to receive 6% of the interest awarded, sinceinterest is not obtained through the efforts of counsel, but is self generatedby operation of law. The City therefore concludes that even assuming thatclaimant is entitled to recover attorneys' fees pursuant to its agreement withcounsel, 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, sincethe EDPL provides only for an award of costs to the condemnor. Further, thecourt should not award claimant $ 728.29 for Lexis research, since this sumshould be subsumed in counsel's fee because legal research "is part and parcelof an attorney's representation of a client." The City also argues that claimantshould not be awarded any sum for travel expenses, since there is no evidentiarybasis to support the claim that $ 2,000 was expended, particularly since theFirm maintains its offices in Manhattan and the action was litigated inBrooklyn.
The City thus concludes that claimant's motion should be denied to the extentthat it seeks attorneys' fees in excess of $ 544,048.80, fees to be paid toTicor in the amount of $ 154,900, Lexis research billed at $ 728.29 and travelexpenses in the amount of $ 1,986.65.
" EDPL 701 1 assures that a condemnee receives a fair recovery by providingan opportunity for condemnees whose property has been substantially undervaluedto recover the costs of litigation establishing the inadequacy of thecondemnor's offer'" (Town of Islip v Sikora, 220 AD2d 434, 437, 632 N.Y.S.2d 160, quoting Hakes v State of New York, 81 NY2d 392, 397, 615 N.E.2d 982, 599N.Y.S.2d 498 ). In interpreting this provision, it has been held that"[t]he statute requires two determinations: first, whether the award issubstantially in excess of the amount of the condemnor's proof' and second,whether the court deems the award necessary for the condemnee to achieve justand adequate compensation.' Where both tests are satisfied, the court may awardreasonable fees" (Hakes, 81 NY2d at 397). The statute is intended to permit acondemnee 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 ; see also Matter of City of New York, 52 AD3d 387, 388, 860 N.Y.S.2d 85 ; City of Yonkers, 221 AD2d 437, 438,633 N.Y.S.2d 578 , lv denied 87 NY2d 812, 666 N.E.2d 1059, 644 N.Y.S.2d145 ).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 EDPL 701provides that:
" In instances where the order or award is substantially in excess of theamount of the condemnor's proof and where deemed necessary by the court for thecondemnee to achieve just and adequate compensation, the court, uponapplication, notice and an opportunity for hearing, may in its discretion, awardto the condemnee an additional amount, separately computed and stated, foractual and necessary costs, disbursements and expenses, including reasonableattorney, appraiser and engineer fees actually incurred by such condemnee. Theapplication shall include affidavits of the condemnee and all parties that haveincurred expenses on the condemnee's behalf, setting forth inter alia the amountof the expenses incurred."- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
It is also well settled, however, that where costs are expended to developand present valuation theories to support a claim for compensation substantiallyin excess of what the court awarded, the court should exercise its discretionand award additional amounts substantially less than what claimant asks (seee.g. China Plaza Co. v City of New York (In re City of New York), 254 AD2d 210,679 N.Y.S.2d 571 ; accord In re Acquisition of Real Prop. by Village ofJohnson City, 277 AD2d 773, 775, 715 N.Y.S.2d 775  [considering that theultimate award exceeded petitioner's initial appraisal by less than 20% and thata substantial part of claimant's counsel and appraisal fees were expended in aneffort to achieve an inflated value and propounding valuation theories that weretotally rejected by the trial court, the record supported a finding that theclaimed expenses were not necessarily incurred to achieve just and adequatecompensation]). Similarly, EDPL 701 also "vests the trial court with discretion,in order to limit both the incentive for frivolous litigation and the cost ofacquiring land through eminent domain'" (Town of Islip, 220 AD2d at 437, quotingHakes, 81 NY2d at 397).
As is also relevant herein and as was recognized by this court in a previousdecision, In re City of New York (1 Misc 3d 911A, 781 N.Y.S.2d 623, 2003 NY SlipOp 51645U ):
"[I]t is now well settled that contingency fee arrangements are an acceptablefactor 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 RevisionCommission to the 1987 Legislature stated that the courts can decide on acase-by-case basis whether a contingent fee arrangement is reasonable under EDPL701 (1987 Report of NY Law Rev Commn, 1987 McKinney's Session Laws of NY, at2007-2012)]). 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 Â§ 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 Â§ 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 NewYork v Jamaica Arms Hotel, 44 AD3d 1040, 1041, 845 N.Y.S.2d 796  [thetrial court was not bound by a contingency fee retainer agreement entered intoby the claimant for representation in the prior appeal; it was only required toassess reasonable attorney's fees]). In that decision, this court went on tonote that contingency fees in amounts of up to one-third of the award have beenupheld 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 ofYonkers, 221 AD2d 437, 633 N.Y.S.2d 578 [one half of the amount requestedpursuant to the sliding-scale contingency retainer agreement was found to bereasonable]; Hoffman, 189 AD2d 968, 592 N.Y.S.2d 503 [contingency fee of 25% ofthe award was reasonable]; In re New York State Urban Dev., 183 Misc 2d 900, 707N.Y.S.2d 593 [10% of the award representing the advance payment, includinginterest, was found to be reasonable, which sum was 50% of the 20% contingencyprovided in retainer agreement]; see also Meyers v State, 166 Misc 2d 586, 589,634 N.Y.S.2d 642  [the court rejected an attorneys' fee of 50% of anymonies recovered above the State's advance payment, as provided in claimant'sretainer agreement, and instead found that a one-third fee of the award, withoutinterest, was an appropriate starting point for determining a proper additionalallowance for attorneys' fees]).
Similarly, it has been recognized that "[s]ince the advance payments . . .were essentially self-generated by the condemnor it cannot be seriouslycontended that the costs . . . incurred by such condemnee' were necessary' forthe 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 ofattorneys' fees premised upon the final award, including interest, it has beenheld, in interpreting Condemnation Law Â§ 16(2), the predecessor to EDPL 701,that "[t]he court erred . . . in computing the additional allowance upon theinterest of the award as well as upon the award itself" (New York State UrbanDev. Corp. v Goldfeld, 54 AD2d 1099, 1100, 389 N.Y.S.2d 63 , citing Matterof County of Westchester v Baruch, 247 NY 398, 401, 160 N.E. 654 ; Matterof Schmieder, 130 Misc 136, 142, 223 N.Y.S. 529 ; Matter of Board of WaterSupply of City of New York, 75 Misc 150, 151, 133 N.Y.S. 213 ; accord Inre City of New York, 2003 NY Slip Op 51645U at 6 [it is well settled that anaward of attorneys' fees should not be calculated including those portions of anaward that represent the interest awarded, since those sums are not obtainedthrough the efforts of counsel, but are self generated by operation of law]). Incontrast, however, it has also been held that an award of a contingency fee inthe amount of 33% of the difference between the court's award, with accruedinterest, and the defendant's advance payment, was proper and reasonable, giventhe amount of time and labor required, the difficulty of the issues presented,the level of skill required of this matter, the benefit resulting to claimantfrom 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 ; see also Inre Edgecombe Road, 128 AppDiv 432, 436, 112 N.Y.S. 845 , affd 194 NY 545,87 N.E. 1118  [since petitioner was entitled to one-half of the award, hewas entitled to it as of the date when the property was taken, so that he wasentitled to interest on it until the same was paid]).
As is also relevant in resolving the instant dispute, it is well settled thatin determining the appropriate amount of attorneys' fees to be awarded, it mustbe recognized that:
"Long and universal tradition in American practice is for attorneys' fees tobe determined on the following factors: the time and labor required; thedifficulty of the questions involved, and the skill required to handle theproblems presented; the lawyer's experience, ability and reputation; the amountinvolved and the benefit resulting to the client from the services; thecustomary fee charged for similar services; the contingency or certainty ofcompensation; 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 ; Matterof 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., 183Misc 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 )
Herein, the court finds that claimant is entitled to recover the full amountof attorneys' fees sought by the Firm. In so holding, the court recognizes thatthis matter was extensively litigated from its inception. Most significantly,the above summary of the procedural history reveals that the City refused tomake an advance payment as required by the statute (see generally EDPL 301, 303and 304) and repeatedly fought claimant's attempts to obtain payment. In thisregard, claimant was compelled to make a motion seeking to obtain an advancepayment because the City claimed that it owned the property, arguing that itsclaim of ownership could be traced to colonial patents dating back to 1645. The41 page decision rendered by the court, which rejected the City's claims andfound that claimant's ownership of the property could be traced to a colonialpatent dating back to 1670, as well as finding the claimant's ownership could besupport by numerous alternative theories, clearly reveals the difficult andcomplex legal issues raised in this proceeding. Thereafter, claimant was forcedto make an additional motion seeking to compel the City to make an advancepayment and to oppose yet another motion in which the City sought to avoid itsobligation to make a payment by forcing claimant to litigate the issue ofwhether the State held an interest in the property. Since both of these motionswere decided in claimant's favor, premised upon the doctrines of collateralestoppel and law of the case, the City's position can also be said to havebordered on frivolous. After tendering an advance payment, the City continued tooppose claimant's efforts to obtain just compensation and ultimately tried thecase in reliance upon an appraisal that valued the property at less thanone-tenth of the amount awarded to claimant.
The court also notes that claimant did not receive an advance payment untilJune 2005, almost ten years after title vested in the City and only after thethree motions discussed above were decided in claimant's favor. Accordingly, theCity cannot, and in fact does not, argue that the Firm should not be entitled torecover 6% of the advance payment, since it is beyond dispute, under thecircumstances of this case, that the advance payment was not self-generated byoperation 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 theaward by over $ 800,000 because the City delayed payment by approximately 12years. Accordingly, the court also finds that the award of attorneys' feesshould be calculated upon the amount of interest awarded, since the Firm wasdeprived of use of its fee, which would have been received years earlier if theCity had compensated claimant in a timely fashion. In addition, the courtrecognizes that the Firm submitted a memorandum of law that convinced this courtto award interest, compounded annually, instead of simple interest, so that theinterest awarded was similarly not self generated. 2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2 In soholding, the court also notes that the earlier cases decided pursuant toCondemnation Law Â§ 16 are distinguishable, since that statute provided that thecourt could allow a defendant to recover "an additional allowance of costs, notexceeding five per centum upon the amount awarded" (see generally WestchesterCounty v Baruch, 247 NY 398, 400, 160 N.E. 654  [emphasis added]). Thecourt's discretion to award an additional allowance pursuant to EDPL 701 is notso limited.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Accordingly, in view of the procedural history of this case, where claimantprevailed on every motion seeking to compel payment; claimant ultimatelyobtained an award that was over $ 8,000,000 more than the City's offer; and theCity delayed in making both an advance payment and a final payment in a timelyfashion, the court concludes that the Firm is entitled to recover an additionalsum 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 citedcases that awarded a contingency fee of up to 33%.
The court also awards claimant the $ 7,125 billed by Mr. Sciannameo for thepreparation of appraisal reports and for his testimony at trial; the $ 5,545.81billed by Mr. Bonfilio for the preparation of his report and for his testimonyat trial regarding the demapping of the paper streets; and the $ 44,500 billedby Mr. Ogur for the preparation of the development plans and for his testimonyat trial. In so holding, the court notes that the City does not contest thenecessity of retaining these experts, nor the reasonableness of the expenses.
The court declines, however, to award the $ 728.29 that the Firm alleges wasexpended for computer research. It this regard, it has been held that " computerresearch is merely a substitute for an attorney's time that is compensable underan 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 Op51798U, 7 , quoting United States v Merritt-Meridan Constr., 95 F3d 153,173 [1996 ], citing BD v DeBuono, 177 FSupp2d 201 ). Similarly, the courtdeclines to award counsel the $ 1,986.65 that the Firm alleges that it expendedin travel expenses, since counsel fails to submit any evidentiary corroborationto justify such an award. In this regard, the court finds that if counselintended to seek to recover expenses incurred, it was incumbent upon it toretain sufficient billing records to support its demand
The court further finds that Ticor is entitled to recover the attorneys' feesincurred in refuting the City's contention that claimant did not hold title tothe property, since claimant succeeded in establishing that it owned theproperty on numerous theories. In this regard, it is well settled that "[t]hedoctrine of subrogation "allows an insurer to stand in the shoes of its insuredand seek indemnification from third parties whose wrongdoing has caused a lossfor which the insurer is bound to reimburse"'" (Spectra Audio Research v Chon,62 AD3d 561, 563, 880 N.Y.S.2d 612 , quoting Duane Reade v Reva Holding,30 AD3d 229, 232, 818 N.Y.S.2d 9 , quoting Kaf-Kaf v Rodless Decorations,90 NY2d 654, 660, 687 N.E.2d 1330, 665 N.Y.S.2d 47 ). Accordingly, havingsuccessfully defended claimant's position in accordance with its title insurancepolicy, Ticor is subrogated to claimant's rights. Further, given the complexityof the issues raised by the City's challenge to title, it is evident that ifTicor did not defend the claim, the Firm would have been compelled to trace thetitle and draft the papers opposing the motion. In view of the number of hoursbilled by Kirschenbaum, it must be presumed that if the Firm had to perform thelegal services rendered by Ticor, it would have sought to increase its fee tocompensate for this unanticipated motion practice.
The court therefor concludes that Ticor is entitled to recover reasonableattorneys' fees. The court further finds, however, that on the papers now beforeit, it cannot determine if Ticor's demand for fees in the amount of $ 154,900 isreasonable. More specifically, the court notes that this fees includes over 100hours billed for consultations with the client; at a billing rate of $ 400 perhour, 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 withregard to why such extensive consultation was needed. In addition, the remainingentries, which bill for research, letters, reviewing documents, etc., withoutoffering any details with regard to services performed, are also lacking in thespecificity needed to determine if the amount billed is reasonable. Thus, theamount of reasonable attorneys' fees incurred by Ticor in representing claimantin connection with the City's challenge to its ownership is referred to aJudicial Hearing Officer.
For the above stated reasons, claimant's motion is granted to the extent ofawarding 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, thereasonable amount of which shall be determined at a hearing. Pursuant to Article22 of the Judiciary Law, in accordance with the provisions of Part 122 of theRules of the Chief Administrator of the Courts (NYCRR Part 122), this issue isassigned to the Judicial Hearing Officer in the JHO Part, to hear and determineif 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 cour