GERARD WEBSTER et al., Respondents-Appellants, v GIACINTO M. RAGONA et al., Defendants, and WALTER A. PEETERS, Appellant-Respondent.
Supreme Court, Appellate Division, Third Department, New York
May 22, 2008
51 AD3d 1128; 857 NYS2d 780
Spain, J.
This action to quiet title has twice been before this Court, resulting in determinations that defendants Giacinto M. Ragona and Antoinette M. Ragona еnjoyed an easement over the lands of adjacent landowners, plaintiffs (7 AD3d 850 [2004]), and that plaintiffs were entitled to recover damages and counsel feеs resulting from the breach of the warranties and covenants in the deed given them by the former owner of the encumbered
The propriety of the amount of damages and counsel fees awarded by Suрreme Court is the sole issue before us in this latest appeal. We turn first to defendant‘s challenge to the $7,000 awarded to plaintiffs in damages. Prior to the inquest, as a condition of a settlement between the Ragonas and plaintiffs, the Ragonas surrendered their right to the easement over plaintiffs’ property. In exchаnge, plaintiffs ceded a strip of land along their common boundary line to the Ragonas. The Ragonas then sold their parcel—the former dominant estatе—to Haney Wellness, LLC. As a further condition of the settlement agreement, plaintiffs granted Haney a license to use, for ingress and egress, the same driveway ovеr which the easement previously had existed for as long as Haney remains the sole fee owner of 32 Main Street, the former Ragona parcel.
Ordinarily, “damages for a breach of covenant against encumbrances or a breach of a warranty of title are measured by subtracting the value of the property after the defect is discovered from its value before the defect existed” (Yonkers City Post No. 1666, Veterans of Foreign Wars of U. S. v Josanth Realty Corр., 67 NY2d 1029, 1031 [1986]). However, at the inquest, no testimony or appraisals were offered with respect to the fair market value of plaintiffs’ property before the easement existed, nor its fair market value after discovery of the easement. Instead, having already taken steps to eliminate the easement, plaintiffs measured their damages based on the costs incurred in that endeavor—specifically, the value of the land ceded to the Ragonas in exchange for their relinquishment of the easement. Gerard Webster testified that the strip of land surrendered by plaintiffs to the Ragonas measured 4.6 feet by 197.1 feet, or 908.6 square feеt, and comprised roughly 2.8% of plaintiffs’ 31,567-square-foot parcel. He further testified that he purchased the property for approximately $250,000 in 1995 and, as such, hе was entitled to 2.8% of $250,000, or $7,000, in damages. No other evidence was submitted with respect to the value of the parcel surrendered.
Although the best evidence оf the injury caused by defendant‘s breach of the deed‘s warranties and covenants would have been an assessment of the impact that the easement itself had on the value of plaintiffs’ property as a whole, and while the proof
Significantly, “a plaintiff need only introduce evidence of one measure of property damages” (Fisher v Qualico Contr. Corp., 98 NY2d at 539), shifting the burden to the defendant to present an alternative method. Here, defendant offered no alternate proof of the value of the land as a whole, or of the small parcel ceded to the Ragonas. Indeed, it could be argued that the $7,000 does not represent the full damages suffered, as plaintiffs claimed nothing for consequential damages flowing from their issuance of the license to Haney (cf. Coldiron Fuel Ctr., Ltd. v State of New York, 8 AD3d at 780-781). Under these circumstancеs, we decline to disturb Supreme Court‘s findings (see Matter of Albany County Airport Auth. [Buhrmaster], 265 AD2d 709, 710-711 [1999], lv denied 94 NY2d 759 [2000]; see also Guilder v Corinth Constr. Corp., 235 AD2d 619, 620 [1997]).
We next turn to plaintiffs’ contention that Supreme Court abused its discretion in setting counsel fees at $32,500, rather than the full $88,410.33 demanded by plaintiffs. Although defendant did not dispute the reasonableness of the hourly rate charged or the veracity of the bills submitted, thе imposition of
Here, Supreme Court found that plaintiffs were “fairly billed” and, appropriately, did not alter the extent of plaintiffs’ liability to their attorneys. Nevertheless, the court found that the full amount of counsel fees that were calculated based on the actual hours billed could not be recovered from defendant, apparently because they exceeded “what the services were reasonably worth” (see Charman v Tatum, 54 App Div 61, 65 [1900], affd 166 NY 605 [1901]). Because this case presents a unique circumstance in which the amount of counsel fees requested is over 12 times the full amount of damages proven in the action, we agree. Given that the result obtained by the representation provided is an integral factor to assessing a reasonable amount of counsel fees and, here, thе full award sought by plaintiffs in damages was only $7,000, on the record before us we cannot find that the court abused its discretion in reducing the award for counsel fees from the full $88,410.33 incurred (see Matter of Quill v Cathedral Corp., 241 AD2d at 594; Shrauger v Shrauger, 146 AD2d 955, 956 [1989], appeal dismissed 74 NY2d 844 [1989]; cf. Continental Bldg. Co. v Town of N. Salem, 211 AD2d 88, 95 [1995], appeal dismissed and lv denied 86 NY2d 818 [1995]).
Defendant‘s contention that plaintiffs’ counsel is precluded from receiving any fees as a result of his failure to produce a letter of engagement, as required by
Ordered that the order is affirmed, without costs.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur.