In this action commenced under the Eminent Domain Procedure Law (EDPL), Respondents have applied to the Court for an Order granting them costs for legal expenses said to have arisen because of abandonment (EDPL �702[B]).

In 2009, Petitioner filed a court proceeding seeking to obtain an Order directing filing of an acquisition map and vesting of title to Respondent's property in the name of Petitioner. The proceeding was withdrawn prior to the return day of the Petition. The withdrawal, according to Respondent, was because Petitioner was informed by Respondent of a defect in their proceeding, i.e., failure to obtain a water supply permit. Respondent's Affirmation in Opposition in that original proceeding confirms the assertion of the defect, along with other matters. A Stipulation of Discontinuance without prejudice was filed. The Stipulation of Discontinuance signed by counsel for the parties (CPLR 3217) provided, "...Respondents reserve and retain all of their rights under Eminent Domain Procedure Law Article 7."

Respondents contend the withdrawal was an abandonment for which they are entitled to incidental expenses, including legal fees (EDPL 702[B]). Petitioner argues there was no abandonment because the proceeding was continued after the Petitioner secured its water supply permit. A second vesting proceeding was filed with this court. Alternatively, Petitioner says any such fees should be limited to those arising out of the initially flawed court process, not the prior administrative procedures that are part of the ongoing condemnation.

A condemnee can recover costs, disbursements, and expenses in certain defined circumstances (EDPL �701; 702).

There is mandatory reimbursement to the condemnee for certain incidental expenses [*2]such as recording fees, transfer taxes, penalties incurred due to mortgage prepayment, and prorated real property taxes and water charges (EDPL 702[A]). There is provision for an additional allowance where an 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... ." (EDPL 701; see Scuderi v State, 184 AD2d 1073 [4th Dept. 1992]; Carbone v State, 13 Misc 3d 1246A). This additional allowance can include costs, disbursements, attorney fees, appraiser fees and engineer fees, in full or in part. An improper de facto taking without an offer can also result in an order directing reimbursement of such costs, expenses, and disbursements if there is a court determination so finding (EDPL �702[C]).

The foregoing, when coupled with the weight given to constitutional protection of property rights (New York Constitution Art I �6 ) support the legislative intent to prevent deprivation of a condemnee's ownership interest without resulting full indemnity for expenses incurred (In re: Waverly Water-Works Co., 85 NY 478).

Consistent with that intent, and as applicable here, if "... the procedure to acquire ... is abandoned..., the condemnor shall be obligated to reimburse the condemnee, an amount...for actual and necessary costs, disbursements and expenses, including reasonable attorney fees, appraisal and engineering fees, and other damages actually incurred by such condemnee because of the acquisition procedure."( EDPL 702[B]). The theory for such a payment is to pay for "... expenses to which [the condemnee] has been unnecessarily put." (See Terrace Hotel Co., Inc. V State, 19 NY2d 526 ).

The right to recovery of such incidental expenses is clear when the condemnor has not properly conducted the acquisition procedure prior to commencement of the vesting procedure (Hargett v Town of Ticonderoga, 13 NY3d 325). The Defendants in Hargett conceded, and it appeared presumed by that court, that an award of such incidental expenses was clearly allowable in the vesting proceeding.

Because of the overriding legislative intent to cautiously guard property rights, the constitutional requirement of fair and just compensation for an involuntary taking, and because of the consistent belief that condemnees should not be required to incur unneeded expense, the Court concludes that a discontinuance of a vesting proceeding at the behest of the condemnor, no matter how many times it occurs and no matter for what reason it takes place, is equivalent to an abandonment within the meaning, spirit and intent of the statute (EDPL 702[B]). The discontinuance here by the condemnor is equivalent to a successful challenge to the proposed taking within this court's interpretation of the rule. The fact that the Respondents' attorney stipulated to the discontinuance does not inure to the benefit of the Petitioner, especially given the language of that document in which Respondents "...reserve and retain all of their rights under Eminent Domain Procedure Law Article 7".

Were the discontinuance not agreed to by Respondent, Petitioner could apply for a court Order, in which case, a court would likely condition such discontinuance on reimbursement to a condemnee of unneded costs incurred by the property owner in any event. [*3]

The motion is granted. The Respondents are entitled to recover the legal expenses requested, which the court finds reasonable, in the amount of $5205.64. Other expenses submitted appear to generally affect other portions of the process that have not been abandoned within the court's interpretation of that phrase, and are disallowed.

The foregoing is the Memorandum of the Court and is So Ordered.

E N T E R

Dated: February 9, 2010___________________

Lowville, NYJoseph D. McGuire