New York State Court of Claims

New York State Court of Claims

FALANK v. THE STATE OF NEW YORK, #2000-004-006, Claim No. 98692


Synopsis



Case Information

UID:
2000-004-006
Claimant(s):
JOSEPH J. FALANK AND CAROLYN L. FALANK
Claimant short name:
FALANK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98692
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
FLOWER & MEDALIEBY: Donald Markowitz, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY-GENERAL
BY: Martin Rowley, Assistant Attorney-Generalof counsel
Third-party defendant's attorney:

Signature date:
May 9, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a timely filed, unassigned Claim for the partial appropriation of premises owned by the Claimants, located in the Town of Windsor, Broome County, in a proceeding entitled "BINGHAMTON-WINDSOR, PART 3 STATE HIGHWAY NO. 5148 BROOME COUNTY". The parties stipulated at the trial that the appropriation occurred on June 2, 1998 and the Court so finds. Claimants took title to the subject property by Deed dated April 11, 1979 and recorded in the Broome County Clerk's Office on the same day in Liber 1288 of Deeds at page 299. (Cl. Ex. 3)


The subject property was located at the southeast corner of an intersection between New York State Route 17, an east/west main thoroughfare and Frost Road, a north/south local road which adjoined Route 17 on the south.[1]
The subject lot, which encompassed approximately one-half acre, enjoyed 240 feet of frontage along the south side of Route 17. The frontage on Frost Road was approximately 108 feet, the east line approximately 80 feet and the rear line approximately 222 feet. Although the Claimants' appraiser thought the lot "Generally level" (Cl. Ex. 1, p 22), it was not. Frost Road sloped down to the south. (see, Cl. Ex. 1, p 28, photograph) The frontage along Route 17 was at grade as was the northerly part of the lot where the building improvements were located. (St. Ex. B, p 17, 3 photographs) However, at the rear of the lot, the topography dropped off sharply to the south. (St. Ex. B, p 15, top and bottom photographs) Site improvements included some asphalt paving, stone/gravel parking areas,5,500 square feet of lawn, a well and a septic system.

The main building on the subject property was a one story masonry building, with a flat gable roof. The original building, which was constructed , at the latest[2]
in late 1950s, was 32 feet wide and 60 feet deep. The rear 11 feet of this building was divided into an office, a lavatory and a food preparation area. Also, the stairs to the basement led from this rear area. Attached to the east side of this main structure was an unheated storage area inside of which was a large walk-in cooler. Attached to the east side of this addition was a flower shop and, to the rear or south of the flower shop, a metal shed. The combined size of these structures forming the main building was 2,815 square feet. There was a basement underneath the main building, the size of which was the subject of controversy. Claimants' appraiser thought the basement encompassed 1,350 square feet. (Cl. Ex. 1, p 24) Mr. Falank thought it was around 1,300 to 1,400 square feet. The State's appraiser, who testified that he actually measured it, found that the basement area was just 32 feet by 11 feet, or 352 square feet. In addition to the main building there was a one story wood frame 384 square foot storage building located near the east property line. The location of the main building was somewhat unusual in that the front thereof was close to the existing southerly boundary of Route 17. Claimants' appraiser estimated that the distance between the front of the building and the south edge of the highway was between one and two meters. The Court finds the set back was less than one meter. (see, Cl. Ex. 4, Appropriation Map)[3]

Although zoned commercial, the applicable zoning law required a minimum lot area of 80,000 square feet and a minimum front set back of 30 feet. (
see, Cl. Ex. 1, p 30) Both appraisers concluded that the subject's actual use as of the date of the appropriation was a legal nonconforming use and both found that the actual use, as a grocery store, was its highest and best use. The Court agrees.

Although the proof with regard to the issue was sketchy at best, the Court finds that the location of the subject property was unusual. It was located on the south side of Route 17 which, according to the State's appraiser, was "a principle connector route between New York City and western New York at Binghamton". (St. Ex. B, p 6) The property was located approximately four and one half miles to the east of the City of Binghamton. In general, Route 17 was a limited access highway. That is, ingress and egress to the highway was accomplished by on ramps and exit ramps. In the area of the subject property, that was not the case. As noted by the State's appraiser, "[t]he commercial properties fronting along Rt. 17 are being taken by the State of New York for this project". (St. Ex. B, p 11) The Court finds that the intent of the construction project, which involved the partial appropriation of the subject property, was to upgrade Route 17, in the area of the subject property, to interstate highway standards. That is, the intent was to eliminate properties and cross roads, within the area of the project, that had direct access to Route 17. It would appear, therefore, that to the east and west of the project limits, Route 17 was a limited access highway. The Court finds that in 1995, 14,100 vehicles per day passed in front of the subject property on Route 17, one can infer approximately one half of that number or 7,050 vehicles, in each direction. All of those vehicles had reasonable access to the subject property. Obviously, eastbound vehicles could drive directly onto the subject property. Westbound drivers could turn left or south onto Frost Road and then turn east into the subject property. In addition, the subject property benefited from local traffic on Frost Road and Riley Road. (see, St. Ex. B, p 14, top and middle photographs and p 17, bottom photograph) The Court finds that there were approximately 10 roads that intersected Route 17 within the project limits. The proof left unanswered the number of these ten intersecting roads that were crossroads, such as found at the intersection where the subject was located, or T intersections formed with Route 17. It appears to the Court that there may have been more crossroads than the one found at the subject property formed by Frost Road and Riley Road. (see, St. Ex. B, p 9) In any event, there were at least 19 other lots located at Route 17 and an intersecting road within the project area that had direct or, at least, immediate access to this segment of Route 17. In the Court's view, this immediate access gave all these lots, including the subject, an enhanced commercial potential since travelers on Route 17 did not have to exit that highway on a ramp in order to find services or amenities. There apparently were no recent sales involving any of the lots which enjoyed this direct access to Route 17 within the project limits. As a result, both appraisers found it necessary to go far afield to locate what they viewed as comparable sales. As will be seen, their efforts, in that regard, were somewhat unsuccessful.


A lack of solid comparable sales led both appraisers to value the property by the capitalization of income approach, despite the fact that the subject property was owner occupied, and which led the State's appraiser to also value the property by the cost approach, despite the fact that the building improvements were erected decades before the date of the appropriation. At the trial, the State's appraiser disavowed his cost approach and capitalization of income approach estimates of value, stating that he gave no weight to either.


Based on his market analysis, the Claimants' appraiser concluded that the subject property had a fair market value, prior to the appropriation, of $250,000. Based on his capitalization of income approach he concluded that the subject property had an indicated market value of $210,000. Weighing both, he opted for a fair market value of $240,000.


The State's appraiser estimated the fair market value of the subject property, by the market approach, at $98,500.[4]


In arriving at their respective views of the before fair market value, both appraisers analyzed and adjusted vacant lands sales to arrive at an estimate of the contributing value of the subject land, as well as improved sales to arrive at their overall estimates of the subject's fair market value.


Upon his analysis of five vacant land sales, the Claimants' appraiser concluded that the subject lot had a contributing value of $40,000, based on a unit value of $85,500 per acre. Upon his analysis of four vacant lands sales, the State's appraiser concluded that the subject land had a contributing value of $47,900 based on a unit value of $2.55/sq. ft. or about $98,000/acre. Considering the fact that the vacant land sales used by both appraisers are, at best, marginally comparable to the subject lot, the result here is quite remarkable.


In arriving at his estimate of the overall value of the subject property by the market approach, the Claimants' appraiser analyzed and adjusted five improved sales. He adjusted these sales based on a price per building square foot, which both he and the State's appraiser found was 2,815 square feet. His adjusted square foot values based on these sales originally ranged from $75.94 a square foot for his sale number four up to $97.40 for his sale number two. He opted for $89 per square foot which he multiplied by 2,815 to arrive at his $250,000 (R) valuation.[5]
The State's appraiser analyzed and adjusted three improved sales. Following the same procedure as the Claimants' appraiser, he adjusted these sales based on the square footage of the building improvements, 2,815 square feet, and arrived at an indicated overall value of the subject property, prior to the appropriation, sans fixtures, of $98,500

Assuming that the respective estimates of the contributing value of the land played a significant role in both appraiser's whole to whole analysis, we come to an interesting result. That is, the Claimants' appraiser concluded that the building improvements on the subject property represented $200,000 out of a total value of $240,000, whereas the State's appraiser apparently concluded that the building improvements contributed some $50,600 out of a total value of $98,500. Indeed, if we eliminate the Claimants' appraiser's capitalization of income results from the equation with regard to the contributing value of building improvements, the spread becomes $210,000 to $50,600. Add to the mix the fact that the State's appraiser, in his cost approach, estimated the replacement cost of the building improvements,
before depreciation, at $144,945. If we add that sum to the Claimants' appraiser's estimate of the contributing value of the land in the amount of $40,000, we would end up with an estimated before value for the subject with a brand new building of the exact same design and construction as the subject building of $184,945.

Obviously, the lack of solid comparable sales can lead in bizarre directions.


Both appraisers considered the subject's building improvements to be in average condition.


The treatment of the common improved sale (
see supra, p 7, fn 5) by the two appraisers, explains, to a great extent, the divergence in their views with regard to the before market value of the subject property.[6] The sale involved the transfer on January 7, 1994 of an improved property located in the Village of Johnson City, which adjoined the City of Binghamton on the west. (see, Cl. Ex. 1, p 50) Both appraisers agreed that the sale price of the comparable sale was $232,000. As noted, (supra, p 7, fn 5) Claimants' appraiser originally overestimated the gross building area of the sale(i.e. at 4,600 square feet) and he adjusted this sale in comparison to the subject with that thought in mind. At the trial he adopted the State's appraiser's estimate of the sale's gross building area of 3,950 square feet. That brought him to the same price per square foot of the sale building, $58.73, utilized by the State's appraiser. The Claimants' appraiser adjusted this sum for various factors on a percentage basis. The State's appraiser adjusted this same sum for various factors on a dollar and cents basis. Claimants' appraiser originally adjusted this sale to an indicated value of the subject of $227,170 (R), based on a gross building area of the subject of 2,815 square feet and an adjusted square foot value of the subject of $80.70. At the trial he changed his analysis (see supra, p 7, fn. 5) and arrived at an indicated value of the subject property, based on this sale, of $247,973 (R), utilizing the same gross building area and an indicated square foot value of the subject property of $88.09. In contrast, the State's appraiser arrived at an indicated square foot value of the subject, based on this sale, in the amount of $36.58, which he multiplied by 2,815 square feet, arriving at an indicated value of the subject of $102,973 (R).[7]
Before discussing the actual adjustments made by both appraisers to this common sale which led to these rather extreme results, it will be helpful to keep the following characteristics of the sale property and the subject property in mind. The sale property was located in a sizeable urban area (
see, Cl. Ex. 1, p 50), whereas the subject property was located in a residential/rural area, apart from the fact that it was located on Route 17, a main thoroughfare. The sale property was used as a laundromat and dry cleaning establishment (see, St. Ex. B, p 72, photograph) in contrast to the subject property's grocery store enterprise. Since Route 17 was a main thoroughfare used by travelers to and from western New York and New York City, a sizeable percentage of the occupants of the 14,100 vehicles that passed in front of the subject property each day were not local commuters or regional residents, but rather were traveling the long haul. Some of these long haul travelers might well stop at the subject grocery store to purchase food to be consumed in their vehicles, but it is difficult to believe that very many of them would stop to wash their laundry or to drop off their dry cleaning. There were sidewalks on both sides of the street where the sale property was located. (see, Cl. Ex. 1, p 57) Needless to say, there were no sidewalks along Route 17, nor were there sidewalks along Frost Road. (see, Cl. Ex. 1, pp 27-28) The Court finds that the building set back of the sale property varied from 23 feet to 50 feet. (St. Ex. B, p 72) This should be contrasted to the subject's almost non-existent set back. However, a distinction should be recognized between the actual legal set back and the physical set back found at the subject. While it is true that the subject building was within a few feet of the Route 17 southerly boundary, there were approximately 31 feet between the front of the subject main building and the south edge of the Route 17 south shoulder[8]. There was an existing curb (actually a narrow median) which ran along the south edge of the south shoulder of the eastbound lanes of Route 17 (see, St. Ex. B, p 17, middle photograph) and there was ample room for vehicles to travel along the front of the subject main building, to the south of this curb. (see, Cl. Ex. 6) Although the State no doubt could have controlled the use of this area in front of the building because it owned the fee, it is doubtful if any State control would have occurred had the subject project not materialized.

What follows is a juxtaposition the respective analysis of the appraisers setting forth the adjustments made by each in comparing the common sale to the subject. The Claimants' appraiser adjusted on a percentage basis. The Court has translated those percentages into dollars and cents so that the views of each appraiser, with regard to a given adjustment factor, can be more easily compared. The dollar amounts within parenthesis in the Claimants' appraiser's column represents his original adjustments, whereas the dollar amounts in that column not in parenthesis represent the adjustments that he arrived at in the courtroom.
Claimants' Appraiser Adjustment Factors State's Appraiser
$58.73 (+ $50.43) Price Per Square $58.73
Foot of Building
+ $ 8.81 (+ $ 7.56) Location - $ 6.00
+ $ 5.87 (+ $ 5.05) Size
Building set back - $ 6.00
+ $5.87 (+ $ 5.05) Improvements[9]
Modernization - $ 2.15
+ $5.87 (+ $ 5.05) Lane/Parking - $ 2.00
(+ $ 5.05) Basement[10]
- $ 6.00
+ $ 2.94 (+ $ 2.51) Garage[11]_______
$88.09 ( $80.70) $36.58

As can be seen, with regard to every factor that the Claimants' appraiser concluded required an adjustment he made a plus adjustment in favor of the subject, whereas with regard to each adjustment that the State's appraiser considered appropriate, he made a minus adjustment.


Further removing the analyses of this sale from the real world is the controversy with regard to the subject's basement. (see supra, pp 2-3) Apparently believing that the subject property had a 1,350 foot square foot basement and that the common sale had no basement (see, Cl. Ex. 1, p 64) the Claimants' appraiser made a plus ten percent adjustment in favor of the subject for this factor. (Cl. Ex. 1, p 63) Sometime prior to the trial the Claimants' appraiser learned that the sale property did indeed have a basement and, as a result at the trial, he eliminated the plus ten percent adjustment in favor of the subject. Asked about this, Claimants' appraiser testified, "when I originally looked at this property, I did not realize there was actually a walk-in basement space, it's not a full basement, in fact, it's a rather small basement. But, it is walk-in and you can stand up there"[12]
. It will be recalled (supra, p 8) that the Claimants' appraiser originally concluded that the gross building area of the sale building was 4,600 feet, but at the trial he adopted the State's appraiser's view that it was actually 3,950 square feet. In his appraisal, the State's appraiser, in describing the sale property, states that it had "a full basement storage and utility area". (St. Ex. B, p 72) At the trial he described it as a "full walk out basement with two overhead bay doors from Myrtle". (see, St. Ex. B, p 72) Asked how he reached his view of the dimensions of the sale basement, the State's appraiser testified, "I went in". As noted, the Claimants' appraiser adopted the State's appraiser's view of the sale building area, some 3,950 square feet. If the sale had a full basement, then it presumably was in the neighborhood of 3,950 square feet and, since the Claimants' appraiser later agreed that it was a walk-in basement, one can assume that it had the bay door amenity described by the State's appraiser. Quite apart then from whether the subject's basement encompassed 1,350 square feet or 352 square feet, the Claimants' appraiser's blanket elimination of his ten percent plus adjustment, made on the assumption that there was no basement in the sale property, makes little sense.[13]

The Court finds that, the foregoing notwithstanding, the common sale, dissimilar to the subject though it was in many respects, was the most comparable to the subject property of any of the improved sales used by both appraisers. This is particularly so with regard to the building improvements on the sale as compared to the building improvements on the subject. One need only look at the photographs of the various improved sales to be led to this conclusion. (see, Cl. Ex. 1, pp 58-61; see, St. Ex. B, pp 73-74)[14]


The mystery with regard to the size of the basement deepened at the trial in a truly bizarre way. As might be expected, the grocery store operation required a sizeable number of fixtures, all of which were appropriated. Claimants did not file a fixture appraisal with the Clerk of this Court, but the State did. At the trial Claimants' counsel called the State's fixture expert as a witness as a part of Claimants' proof and introduced his fixture report, previously marked for identification by the State as Exhibit A, in evidence. The fixtures appraiser prepared a sketch of the building dimensions and a sketch of the basement dimensions, which appear on page 2-5 of Exhibit A. According to the sketches, the gross building area of the first floor of the subject property was 2,570 square feet and the square footage of the basement some 352 square feet, the latter being exactly the same square footage of the basement found by the State's appraiser. That the fixture expert was in the basement there can be little doubt, since there were many fixtures there. Indeed, there are six photographs of various fixtures which were located in the basement found in Exhibit A at pages 2-15, 2-16, 2-17, 2-18, 2-19 and 2-20. At the trial the fixture expert was asked about the size of the basement and he testified, "probably the width of the building and perhaps 12-15 in width in the other direction". Asked if, prior to the trial, he had discussed "the information contained on page 2-5" with the State's real estate appraiser, the fixtures expert responded, "no". Obviously, since the fixtures expert estimated the width of the basement at somewhere around 12-15 feet, he did not actually measure the basement. It seems odd, therefore, that the basement square footage found in Exhibit A at page 2-5, i.e. 352 square feet, is the exact square footage found by State's real estate appraiser, based on his measurements of 11 feet by 32 feet. (see, St. Ex. B, p 31)


The Court finds that the contributing value of the fixtures on the subject property, as of the date of the appropriation, was $6,700 (Exhibit A)


Since the actual size of the subject basement has some significant bearing on the overall market value of the subject property as of the date of the appropriation, the factual issue presented with regard to its size must be addressed. Since the existence of the basement under the common sale building, in point of fact a walk-in basement, escaped the Claimants' appraiser's attention the first time around, one must view with caution his opinion that the subject basement encompassed 1,350 square feet. This is particularly so when, although there are numerous pictures of the interior of the subject main building in evidence, there are no pictures of the basement area, other than the area where the furnace and refrigerant compressors were located, all pictures taken by the State's appraisers. Beyond that, we are left to wonder to what use the additional 1,000 square foot plus of basement area was put, if it was there. That subject was not discussed at the trial. Was it used for storage? If so, it seems somewhat odd that the unheated storage area would have been constructed on the east side of the first floor of the building. Since the Claimants' appraiser did not testify that he measured the basement, Mr. Falank's testimony, which bracketed the 1350 square feet, appears to the Court to be unreliable. On the other hand, the fact that the fixture appraiser came up with the exact same square footage as the State's realty appraiser, without measuring the actual basement, is fishy. It may be that, for reasons occult, no one was able to accurately measure basements with regard to this Claim. It will be recalled that the State's appraiser found that the square foot area of the first floor of the common sale was 3,950, which the Claimants' appraiser adopted. The State's appraiser estimated the square footage of the basement as the "Same", noting that the basement was entered through "two lower level wood overhead doors". (St. Ex. B, p 72) On his return trip, the Claimants' appraiser concluded with regard to the common sale basement, "it's not a full basement, in fact it's rather a small basement, but...it is a walk- in and you can stand up in there. It looked to me originally as though it were a crawl space...". Since it was the State's appraiser's testimony that there were two overhead doors leading into the common sale's basement, we are left with the peculiar thought that the wooden overhead doors led to a crawl space. In this regard, we are uncertain whether the Claimants' appraiser's conclusion that the basement was not a full basement and that it was rather a small basement meant that it was a 3,950 square foot basement that was less than normal height.


Claimants have the overall burden of proof in this Claim and that includes proof with regard to the size of basements. When Claimants' appraiser realized that he had overlooked the basement at the common sale, (presumably having learned that he did so after the appraisals were exchanged), and returned to the common sale property, it was time to take measurements. When the appraisals were exchanged and the glaring discrepancy surfaced with regard to the size of the subject's basement, it was time to prepare and present concrete proof with regard to the size of that basement. It may well be that the subject building was gone by the time that the appraisals were exchanged. Nonetheless, there were various ways whereby the actual size of this basement could have been established more definitively. For example, through the testimony of other witnesses or by description of the use of the additional basement space posited by the Claimants. After carefully reviewing the subject, the Court finds that the subject basement was actually 332 in square feet.

The Court finds that the subject lot had a contributing value of $47,900. That is the State's appraiser's estimate and it is at the upper end of the range. The principal reason the Court has opted for this contributing land value is because the subject lot was not only located on a main thoroughfare, Route 17, but was also located at a through intersection. The Court notes that there were a number of local roads that intersected Riley Road, the road that ran to the north from Route 17 at the subject intersection. (see, St. Ex. B, p 62) Common sense dictates that these roads serviced a residential area and almost certainly generated some customers for the subject grocery operation.


In arriving at the before value of the subject property as a whole, the Court has given the greatest weight to the common sale, for the reasons discussed in detail above. The Court further finds that when the square foot building price of that sale, $58.73, is adjusted for appropriate factors, the sale indicates a fair market value of the subject of $156,900, without consideration of the subject's fixtures. After carefully considering the views of both appraisers, the Court finds that the following adjustments to that sale are appropriate:


Location - No adjustment. Although the locations are wildly different, the Court finds that both are equally advantageous.


Size - Plus $1.00. The Court has applied the old saw here that the smaller the unit size, the higher the unit value, albeit with some caution with regard to this Claim.


Setback - Minus $2.00. The lack of setback of the subject obviously lessens its value but not as dramatically as the State's appraiser believes, since parking in front of the subject main building was not a critical aspect of the grocery store operation.


Condition - Minus $2.00. While the Claimants' appraiser's conclusion that the condition of the subject was better than the sale is simply beyond belief, (c.f., St. Ex. B, p 72, Photograph with Cl. Ex. 6, photograph) the fact of the matter is that the subject main building, though considerably older than the sale building was in average condition and, the Court finds, the sale building was as well. In this connection the Court notes that there is little obsolescence depreciation of the subject building, particularly in comparison to the sale building. Essentially, both provided open space for retail purposes.


Parking - No adjustment. While it is true that customers could park in front of the sale building and not in front of the subject building, the fact of the matter is that the subject lot afforded more available parking area than the sale.


Basement - Minus $1.00. The sale basement was much larger and this requires a minus adjustment. On the other hand, the Court finds that a $1.00 adjustment appropriate in view of the subject's unheated first floor storage space, an amenity not found at the sale.


Garage - Plus $1.00. The sale did not have a garage.


These adjustments lead to an indicated square foot value of the subject of $55.73 which, when multiplied by 2,815 square feet lead to a value of $156,900 (R). To this sum must be added a contributing value of the fixtures in the sum of $6,700 for a total before value of $163,600.


In reaching this result the Court has given no weight to the Claimants' appraiser's income approach. Although it hardly seems possible, the leases that the Claimants' appraiser used in comparison to the subject property to arrive at an estimated annual net income for the subject property are less comparable to the subject property than the comparable sales.


Map No. 79 R-1, Parcel No. 118 appropriates a permanent easement without access of .42478 acre, representing the entire area of the subject lot other than a .06375 acre triangular shaped segment of the lot at the southwest corner thereof. All of the building improvements were on Parcel No. 118. Parcel 119 appropriates a permanent easement on the triangular parcel in the southwest corner of the subject, with access. Commenting on the effects of the takings, the State's appraiser states, "the subject frontage of 240' on the new Rt. 17 has no access, and the 108' ± of frontage on Frost Road is now dead ended and is formed by a turn around cul-de-sac with no access". (St. Ex. B, p 52)


The taking of Parcel No. 118 as a permanent easement without access instead of a taking in fee is beyond human understanding. The appropriation map sets forth the following reservation
RESERVING, however, to the owner of any right, title, or interest in and to the property described above as Parcel Nos. 118 and 119 and such owner's successors or assigns, the right of using said property and such use shall not be further limited or restricted under these easements beyond that which is necessary to effectuate their purposes for, and as established by, the reconstruction and as so reconstructed, the maintenance, of the herein identified project.

(Cl. Ex. 4, sheet 3)

In other words, the State has reserved to the Claimants a vague right to use Parcel No. 118, but not the right to legally go on the parcel.


The Claimants' appraiser saw no value in the remainder, that is, the fees underlying these two permanent easements. The State's appraiser saw a total value of $500 in both of the underlying fees. Arguably both are wrong and the interests that the Claimants retain in these underlying fees have negative values. In other words, selling a fee subject to a permanent easement that legally excludes the seller and prospective buyer from the fee and selling a fee encumbered by a permanent easement to be used by the public as a cul-de-sac, would test the mettle of the very best real estate salesmen. Obviously, the remainder has, at best, no value.


The Court has viewed the property.


Claimants are awarded the sum of $163,600 with interest thereon from June 2, 1998, the date of taking, to the date of this Decision and thereafter pursuant to CPLR §§ 5001, 5002 and 5003 and Court of Claims Act § 19, subd. 1, subject to Court of Claims Act § 19, sub. 4 and EDPL § 514.


The award to Claimants herein is exclusive of the claims, if any, of persons (other than the owner of the appropriated property), tenants, mortgagees, and lienors having any right or interest in any stream, lake, drainage and irrigation ditch or channel, street, road, highway, or public or private right-of-way or the bed thereof within the limits of the appropriated property or contiguous thereto; and is exclusive also of claims, if any, for the value of or damage to easements and appurtenant facilities for the construction, operation, and maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer, and railroad lines.


ENTER JUDGMENT.


May 9, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
The intersection was actually a through intersection, since another local road, Riley Road adjoined Route 17 on the north, directly across from Frost Road.
[2]
See infra, p 3, fn 3.
[3]
The appropriation map indicates that the north property line of the subject was established by a "Map 22" in "1944". It seems unlikely that the main building would have been erected within a few feet of that line after 1944.
[4]
His estimates of the value by the capitalization of income approach and the cost approach were both less.
[5]
Both appraisers used a common improved sale, Claimants' appraiser's Sale No. 1 and the State's Appraiser's Sale CP-1. At the trial, Claimants' appraiser adopted the State's appraiser's lower estimate of the gross building area of the sale building, which resulted in his increasing his estimated square foot value of the subject, based solely on this sale, from $80.70 a square foot to $88.09 a square foot. He also corrected the sale price of his improved Sale No. 3 from $95,600 to $72,500 which reduced his indicated square foot value of the subject, based solely on his Sale No. 3 sale from $96.78 to $73.39. (See, Cl. Ex. 1, p 63) He was of the view that these changes did not effect his ultimate opinion of before value.
[6]
Ordinarily, a common comparable sale is a good test of value. (see, Ensign v City of Hudson, 93 AD2d 963)
[7]
These computations are the Court's, not the appraisers, since the appraisers supplied total computations based on their respective analysis of all of the improved sales that they utilized.
[8]
The Court has scaled this distance on the appropriation map. (Cl. Ex. 4)
[9]
By improvements, Claimants' appraiser meant condition. (see, Cl. Ex. 1, p 64)
[10]
The State's appraiser combined his allocation of value with regard to the basement and garage i.e., "basement and other building storage". (St. Ex. B, p 49)
[11]
[12]
Unless otherwise indicated, all quotations are from the Court's trial notes or the trial electronic recording cassettes.
[13]
This basement mess is not a minor matter. The Claimants' appraiser's original plus ten percent adjustment to his original price per square foot of building in the amount of $50.43, represents an adjustment of $5.04 per square foot. When this sum is multiplied by the 2,815 square feet ultimately utilized by both appraisers, the adjustment is plus $14,188 (R).
[14]
At first blush, the State's appraiser's improved Sale CP-2 appears to have considerable similarity to the subject. The photograph of this sale (see, St. Ex. B, p 73) shows a one story masonry building which bears some similarity to the subject's main building. However, there apparently were two masonry buildings on the sale property, one of which is not shown in the photograph. Beyond that, the common sale and Sale CP-2 are both located on the same street in the Village of Johnson City in close proximity to each other. (The common sale is at 160-164 Harry L Drive while CP-2 is at 140-144 Harry L Drive.) The State's appraiser made a minus $6.00 deduction for location with regard to CP-1 and a minus $2.50 deduction with regard to Sale CP-2 for this same factor. More troubling is the fact that the CP-2 Sale was an estate sale. There apparently was a fire on the sale property, subsequent to the sale. The State's appraiser verified the sale with the grantee who, according to the State's appraiser, "would not elaborate on further details of the sale, but confirmed data gathered by appraiser was essentially correct in fact". (St. Ex. B, p 73) Asked at the trial if he was troubled by "some of these factors" the State's appraiser responded, "that's correct". This sale appears to the Court to be an unreliable guide to value.