Lee-Hi Fuel Corp. v. State

The instant condemnation claim was filed before the effective date of EDPL 701, as amended by Laws of 1987 (ch 771), relied on by the court in granting additional allowances for actual and necessary costs, disbursements and expenses incurred in pursuing the claim. The court also used the State’s written offer, or advance payment, rather than the value proved by the State at trial, in concluding that the award was substantially in excess of the State’s proof.

The amended version of EDPL 701 was properly applied, since claimant’s rights to allowances did not accrue until after there was an award, order or judgment in the condemnation proceeding. And, even if the court’s resort to section 701, as *495amended, be deemed a retroactive application of that statute, no error was committed, the amendment, being remedial in nature (Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705). Nor did the court err by relying on the State’s original offer, rather than the evidence adduced at trial, for purposes of deciding whether the award substantially exceeded the condemnor’s proof. To hold otherwise would be to require a claimant to undertake litigation to receive just compensation and relieve the State of the burden of properly appraising the property in the first instance, contrary to the intent of the statute (Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.] supra; see generally, Meehan, Practice Commentaries, McKinney’s Cons Laws of NY, Book 16A, EDPL 701, 1991 Pocket Part). Concur — Carro, J. P., Milonas, Rosenberger, Ellerin and Smith, JJ.