New York State Court of Claims

New York State Court of Claims

ZLATEV v. THE STATE OF NEW YORK, #2001-006-99523, Claim No. 99523


Synopsis


This is a timely filed appropriation claim located on Harlem Road in Cheektowaga, New York. Claimant is awarded $8,500.00 in damages.

Case Information

UID:
2001-006-99523
Claimant(s):
ZLATKO ZLATEV
Claimant short name:
ZLATEV
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99523
Motion number(s):

Cross-motion number(s):

Judge:
EDGAR C. NeMOYER
Claimant's attorney:
PETER A. VINOLUS, ESQ.
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 25, 2001
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a timely filed claim for damages caused by the partial appropriation of claimant's property, pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law. The subject property is described on the appropriation maps entitled "Harlem Road, S.H. 9381, Erie County, Map No. 518, Parcel No. 527" and "Harlem Road, S.H. 9381, Erie County, Map No. 546, Parcel No. 558", filed in the Erie County Clerk's Office on May 1, 1998, to which the parties stipulated, and the court finds to be the date of taking. Said maps and the property descriptions set forth therein are adopted by the court and incorporated herein by reference. This claim has not been assigned or submitted to any other court, tribunal or officer for audit or determination.

At the time of the appropriation herein, claimant, Zlatko Zlatev, owned the property located at 1491 Harlem Road in the Town of Cheektowaga, Erie County, New York, which property is the subject of this appropriation claim. The claimant acquired title to the property by deed recorded in the Erie County Clerk's Office on March 29, 1996, in Liber 10899 of Deeds, Page 3247. There was no dispute as to the ownership of the property.

The subject property is a slightly irregular parcel of land with improvements. It is assessed by the Town of Cheektowaga as two separate parcels. One parcel fronts on the east side of Harlem Road and is 72 feet by 114 feet. The other parcel fronts on Crissfield Avenue, is 72 feet by 114 feet, with 36 feet of the 72 feet forming a common border with the front parcel. The total land area of both parcels is 16,416 square feet. The Harlem Road section of the property is improved with a two story, cinder block and wood building, with a tavern on the first floor, and an apartment on the second floor. The building also contains a partial basement. Defendant's appraiser calculated the total building area to be 3,557 square feet, which the court adopts. There is also a two car concrete block garage on this part of the property. The Crissfield Avenue section of the property is vacant. Other land improvements prior to the taking included a concrete paved area in front of the building along Harlem Road, and a blacktop paved area along the south side of the building leading to the rear parking area. The parking area at the rear of the building is deteriorated blacktop with crushed stone intermixed. This parking area accommodates approximately 30 vehicles, and extends eastward onto Crissfield Avenue. The subject property is zoned residential, but the tavern business, run by claimant, is a grandfathered legal, non-conforming use within this particular zoning district. At the time of the taking, the property was assessed at $78,500.00, which yielded a fair market value, utilizing a 64.69% equalization rate, of $121,348.00.

The appropriation took a strip of land along Harlem Road, containing 194 square feet. This reduced the setback of the building on the subject property by 3 feet along Harlem Road, from approximately 12.7 feet to 9.7 feet. Consequently, after the taking, the property contained 16,222 square feet. There was also a temporary easement for approximately two years which contained 690 square feet. The acquisition also took land improvements consisting of 194 square feet of concrete paved area in the front of the building. This was of nominal value.

The court has viewed the property.

Both appraisers agreed the highest and best use of the subject property, in both of the before and after situations, was for its continued use as a tavern and apartment with the rear parking area.

Claimant, Zlatko Zlatev, testified he purchased 1491 Harlem Road and the vacant lot behind it in March, 1996. He described the tavern on the premises, which he owns and operates and is known as "ZZZZ's", as a "neighborhood saloon, a shot and beer place."[1]
According to claimant, he had been frequenting this tavern for approximately 25 years before he purchased it, and cars always parked in front of it. He was never aware nor was he ever told, parking in front of the tavern was illegal. Claimant stated that, prior to the appropriation, he was able to park five to six cars in front of his tavern. Claimant maintains the appropriation removed all of his front parking. He states he lost some of his morning customers because of this loss of parking. He explained customers would park in front of the tavern, go inside for a quick shot and beer, and then leave. Claimant estimates he lost 25% of his business because of this appropriation. Claimant's appraiser estimated a $3,900.00 annual loss of profit to claimant due to the appropriation. The court has not considered any loss of income or profit to claimant resulting from the appropriation, because neither claimant nor his appraiser submitted any proof to support their positions, nor did the claim set forth loss of income to claimant as an item of damage.
Claimant also maintains the taking made vehicle access to his property from Harlem Road less convenient. Other than this general assertion, there was no proof submitted to support it. Furthermore, any inconvenience accessing claimant's property because of the taking would not be compensable under the circumstances presented here.
Penningroth v State of New York, 35 AD2d 1024; Castellano v State of New York, 38 AD2d 652.
Claimant's appraiser established total damages for the appropriation at $42,300.00. Defendant's appraiser maintains total damages resulting from the taking amounted to $2,500.00. The substantial difference between the two appraisers arises from whether or not the property suffered indirect or consequential damages as a result of the appropriation. Claimant's appraiser maintains substantial indirect damages result from the total loss of parking in front of the tavern caused by the appropriation. Defendant's appraiser contends the property suffered no indirect or consequential damage as a result of the taking. It is his position parking was illegal in front of the tavern, and claimant could not have lost that to which he was never entitled. Consequently, defendant's appraiser only attributed direct damages to the property resulting from the appropriation. These direct damages include the land area and improvements acquired, and the rental value for the temporary easement.

Since parking in front of claimant's tavern is at the heart of the controversy caused by this taking, the court will address that issue first. Claimant and his appraiser maintain there were five parking spaces in front of the tavern prior to the appropriation. While the court agrees there was the availability of parking in front of the tavern prior to the appropriation, it believes claimant and his appraiser have exaggerated the number. A survey of claimant's property, dated January 16, 1996, (Exhibit 3), shows claimant had a space 12.7 feet wide by 46.3 feet long available for parking in front of his tavern. The available length for parking would be somewhat diminished because of space taken up by the front door of the tavern, where parking would be impractical and probably illegal due to fire codes. The Town of Cheektowaga Zoning Law, adopted January 21, 1992, Section 82.-30(A), page 56 thereof, established that a minimum stall parking space should be 9 feet by 20 feet and a parallel (curbside parking space) should be 8 feet by 22 feet (Exhibit A, addenda). To support his position of the number of vehicles which could park in front of his tavern, claimant entered into evidence Exhibits 17, 18, and 19. These exhibits are photographs of the front of claimant's tavern prior to the appropriation showing parked vehicles. Exhibit 19 shows four vehicles parked in front of the tavern, in two rows of two vehicles each. The problem is that, because of the closeness of the parked vehicles to the tavern and to each other, passengers and drivers would be unable to open the car doors and exit the vehicles. It appears from the photograph, Exhibit 19, the only people who could exit their vehicles freely would be the two drivers of the vehicles parked closest to Harlem Road. Based upon the foregoing, and the court's view of the property, the court finds prior to the appropriation the 12.7 foot by 46.3 foot concrete area in front of claimant's tavern could and did comfortably accommodate two parking spaces.

It is defendant's position that any vehicle parking in front of claimant's tavern was illegal under the Cheektowaga Zoning Laws. Therefore, the loss of front parking resulting from the appropriation is not compensable as indirect or consequential damages. To support this position, the defendant offered the testimony of Daniel J. Ulatowski, the Zoning Code Enforcement Officer for the Town of Cheektowaga. Mr. Ulatowski testified the 1992 Cheektowaga zoning map indicated claimant's property was zoned residential. He further stated the tavern and apartment above it at 1491 Harlem Road were considered a legal non-conforming use. However, Mr. Ulatowski testified claimant did not have a non-conforming use for parking in front of the tavern. He conceded there had been no attempts by the Town of Cheektowaga to restrict parking in front of claimant's tavern, nor was he aware of any complaints regarding front parking. The court is somewhat skeptical of Mr. Ulatowski's testimony regarding the front parking because of a claim tried by the court the week before the trial of this claim. That claim was
Brunner v State of New York, claim number 99369, which involved the appropriation of 278 square feet of property in front of 3343 Genesee Street, Town of Cheektowaga, New York. The main element of damage in that claim was indirect damage resulting from the loss of parking in front of an automobile repair shop. The automobile repair shop was also a legal non-conforming use. The date of taking in the Brunner claim was May 19, 1998. The Brunner property was located approximately 2½ miles from the subject property. In the Brunner claim, Mr. Ulatowski is quoted by defendant's appraiser as stating all on site parking was also a grandfathered legal non-conforming use because it preceded the 1992 zoning regulations. Mr. Ulatowski went on to advise defendant's appraiser this would have permitted two parking spaces in front of the automobile repair shop. It appears defendant has taken two inconsistent positions over the same issue in back to back appropriation claim trials before the court. In light of the foregoing, the court finds claimant had two legal parking spaces in front of his tavern at 1491 Harlem Road prior to this appropriation.
Claimant's appraiser, Frank Pirritano, utilizing the sales comparison approach, found claimant sustained total damages in the amount of $42,300.00 as a result of the taking. He assigned $3,300.00 for direct damages and $39,000.00 for indirect or consequential damages, resulting from the loss of parking in front of the tavern. The court has carefully reviewed Mr. Pirritano's appraisal (Exhibit 2), and finds it to be unreliable, save for Mr. Pirritano's conclusion that claimant lost front parking after the taking. Consequently, the court, in reaching this decision, has not given any weight to Mr. Pirritano's sales comparison approach and the conclusions drawn therefrom. To explain, one need first look at Mr. Pirritano's adjustment grid for determining the value of claimant's property as vacant land before the taking. Mr. Pirritano used three comparable sales. Sale number one took place December 17, 1994 and had a value of $1.63 per square foot. Sale number two took place on March 18, 1994, and was valued at $1.88 per square foot. Land sale number three took place on June 9, 1998 and had a value of $2.19 per square foot. Mr. Pirritano made a time adjustment for each of these three land sales at a rate of 5% per year. His time adjustment for sale number one was $1.17, for sale number two $1.21, and for sale number three $1.00. All of these time adjustments greatly exceed the 5% per year which Mr. Pirritano claimed to use. Furthermore, the court can see no reason for any time adjustment for sale number three, taking place on June 9, 1998, with the date of taking being May 1, 1998. In any event, Mr. Pirritano arrived at an adjusted cost per square foot for the three land sales, which should have come about by adding together the square foot cost and the time adjustment. However, his adjusted cost per square foot cannot be reconciled with the figures he used for his square foot cost and time adjustment. The adjusted cost per square foot in Mr. Pirritano's appraisal for land sale number one is $1.91, for land sale number two $2.27, and for land sale number three $2.19. If the figures used by Mr. Pirritano were added together to arrive at an adjusted cost per square foot, land sale number one should equal $2.80, land sale number two $3.09, and land sale number three $3.19.

The court also finds fault with Mr. Pirritano's improved land sales comparisons before the taking. Mr. Pirritano utilized three land sale comparisons, one taking place December 5, 1995, another November 19, 1996, and another June 30, 1995. Mr. Pirritano took no time adjustment for each of these sales, and explained in his appraisal the sales were "too recent" for such an adjustment. The court cannot agree with this conclusion. The date of taking here was May 1, 1998. Mr. Pirritano's improved comparable land sales range from approximately 1½ to 3 years prior to the date of taking. The court does not consider these recent comparable sales.

This same problem holds true for Mr. Pirritano's improved comparable land sales in the after situation. Mr. Pirritano once again used three comparable sales, and only took a time adjustment for one of those sales. Sale number one occurred on March 29, 1996, sale number two on September 27, 1994 and sale number three on December 5, 1995. The only time adjustment taken by Mr. Pirritano on these three sales was for sale number two. The sale price per square foot on sale number two was $18.67, and Mr. Pirritano took a time adjustment of $1.87. In his explanation of adjustments to this comparable sale, Mr Pirritano stated sales one and three were "too recent" in time to apply any time adjustment, while sale number two, occurring in 1994, required a time adjustment. Furthermore, the time adjustment used by Mr. Pirritano for comparable sale number two in the after situation was 10% per year. By the court's calculation using Mr. Pirritano's 10%, sale number one should have had a 20% time adjustment, sale number two a 35.5% time adjustment, and sale number three a 25% time adjustment. It appears Mr. Pirritano was using a date of taking sometime in 1995, instead of May 1, 1998, to justify his lack of time adjustments to comparable sales in both the before and after situations. Furthermore, the time adjustment taken by Mr. Pirritano for comparable sale number two in the after situation ($1.87) is inadequate for a sale date of September 27, 1994. Finally, there does not appear to be any logical reason why Mr. Pirritano utilized a 5% per year time adjustment for his unimproved land sale comparables, and then used a 10% per year time adjustment for improved comparable land sales.

Mr. Pirritano assigned direct damages of $2,800.00 for the temporary easement. He testified this was merely a judgment figure, without giving any rational basis for it.

Since the court has determined claimant's appraisal cannot be relied upon, it is left with defendant's appraisal for guidance in determining damages. Defendant's appraiser, Gregory C. Klauk, relied upon the direct sales comparison approach in reaching his values for the subject property, as unimproved land and improved land in both the before and after situations. In addition to hearing Mr. Klauk's testimony, the court has completely reviewed his appraisal (Exhibit A), and finds the conclusions and values arrived at by Mr. Klauk to be reliable and accurate except for the front parking issue. As previously stated, the court disagrees with Mr. Klauk's conclusion that claimant lost no front parking as a result of this appropriation.

Mr. Klauk found the value of the subject property as unimproved land to be $4.00 per square foot or $65,700.00 (rounded) in the before situation and $64,900.00 after the taking. The court adopts these figures. In the before situation, Mr. Klauk determined claimant's property to have a value of $120,000.00. The court finds this figure reasonable and fully supported by Mr. Klauk's comparable sales. Because Mr. Klauk concluded claimant did not suffer any indirect damages from the taking, his after value for claimant's property as improved remained at $120,000.00.

Since the court disagrees with Mr. Klauk on the issue of indirect or consequential damages, it is necessary to adjust his after value of claimant's property as improved downward. In making adjustments to comparable sales for his appraisal, Mr. Klauk calculated the cost of a parking space at $3,000.00 each, which the court will use in adjusting the after value of claimant's property, taking into consideration the loss of two front parking spaces. In addition to the direct damage to the land, there were also direct damages from the taking of 714 square feet of paving. Mr. Klauk calculated the cost of this paving at $3.00 per square foot new, and then depreciated it 50%. The final figure arrived at for the loss of paving is $1,100.00, which the court adopts. Taking into consideration the loss of two frontal parking spaces to claimant's property, valued at $6,000.00, as indirect or consequential damages and the direct damages to the land and paving, the court finds the after value of claimant's property to be $112,100.00.

There was also a two year temporary easement for which claimant is entitled to be compensated. Mr. Klauk used a rental analysis to determine the value of the temporary easement. He concluded land rent was 10% of the market value of $4.00 per square foot for unimproved land. Therefore, the rental value of the easement was $600.00 (rounded), calculated at 690 square feet x $.40 per square foot x 2 years. The court sees no reason to disturb this figure.

Based upon the foregoing the court finds the value of claimant's property before the appropriation was $120,000.00 and after the appropriation was $112,100.00, for total damages sustained by claimant in the amount of $8,500.00, including the temporary easement. Said damages are calculated as follows:
BEFORE VALUE
Land: 16,416 s.f. @ $4.00/s.f. $ 65,700(R)
Building and improvements
54,300
TOTAL $ 120,000

AFTER VALUE
Land: 16,222 s.f. @ $4.00/s.f. $ 64,900(R)
Building and improvements
47,200
TOTAL $ 112,100


TOTAL DAMAGES $ 7,900

Temporary Easement 600

ALLOCATION OF DAMAGES
Land: 194 s.f. @ $4.00/s.f. $ 800(R)
Paving: 714 s.f. @ $3.00/s.f., less 50% 1,100(R)
TOTAL DIRECT DAMAGES $ 1,900
TOTAL INDIRECT DAMAGES 6,000
Temporary Easement 600
TOTAL DAMAGES $ 8,500

Claimant is awarded the sum of $8,500.00 with interest thereon from May 1, 1998 (date of taking), to November 1, 1998 (six months subsequent to date of taking), and from December 21, 1998 (date of filing of claim), to the date of this decision and thereafter to the date of entry of judgment herein, pursuant to CPLR 5001 and CPLR 5002; EDPL § 514; Court of Claims Act § 19(1); subject to Court of Claims Act § 19(4).

The award herein is exclusive of the claims, if any, of persons other than the owners of the appropriated property, its 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 the 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.

January 25, 2001
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims



[1]
Quotes are from trial notes unless otherwise indicated.