New York State Court of Claims

New York State Court of Claims

BRITTON v. THE STATE OF NEW YORK, #2002-001-505, Claim No. 96836


Case Information

TODD M. BRITTON, Individually and as Administrator of the Estate of RANDALL S. BRITTON, deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Joshua J. Effron, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Martin Rowley, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The Court awards claimant direct damages in the amount of $243 (rounded) relating to a partial appropriation in fee of real property as well as the appropriation of a permanent easement for a stream channel thereon; and awards additional damages in the amount of $125 pursuant to Highway Law § 30 (14)

This timely filed claim seeks compensation for the partial appropriation in fee of real property owned by claimant Todd M. Britton ("claimant") as well as the appropriation of a permanent easement for a stream channel thereon (claim, dated Aug. 18 and filed Aug. 21, 1997). The claim's second cause of action, originally pleaded as a de facto appropriation resulting from the cutting of trees and shrubs on and the use of a portion of claimant's unappropriated land (id., ¶¶ 8-9), was subsequently recast as a cause of action for de facto appropriation of a temporary easement or a temporary occupancy under Highway Law § 30 (17) and Di Bacco v State of New York (42 AD2d 364) (T 7-8, 77, 85-88;[1] see also, claimant's Memorandum of Law ["claimant's Mem. of Law"], p 3).

Claimant's property is located on New York State Route 85 ("Route 85") in the Town of Rensselaerville, Albany County. The appropriation pursuant to section 30 of the Highway Law and the Eminent Domain Procedure Law, which was occasioned by the conversion of a culvert carrying a stream under Route 85 into a small bridge, is reflected in the map annexed to the claim and entitled "SH 199 Delaware Turnpike, Pt. S.H. 199, Map No. 43, Parcel Nos. 66, 67, 68."[2] The parties have stipulated that the appropriation map was filed in the Albany County Clerk's Office on March 14, 1995 (stipulation, dated October 23 and filed October 26, 2001).[3] There is no dispute as to the ownership of the property, which was conveyed to claimant and his now deceased father as tenants-in-common by warranty deed dated October 26, 1994 for $115,000 (trial exh. 3)[4] and which, in accordance with Court Claims Act § 12 (4) and EDPL 510 (A), the Court has viewed.

The property, a roughly 45 ± or 47 ± acre parcel,[5] was improved with a two-story residence, a detached garage and two sheds (T 14-15, 58-59). Route 85 bisects the property, a mix of wooded, shrubbed and open lands typical of the surrounding area, which is zoned rural residential/agricultural; a stream runs through the property, a portion of which consists of swamp and/or State-designated wetlands (trial exh. 11 [claimant's Appraisal Report filed Feb. 17, 1999], pp 6-7; trial exh. C [the State of New York's Appraisal Report filed Apr. 3, 1999], p 12).

The fee appropriated comprises 0.154 acre, consisting of parcel No. 66, an approximately 0.019-acre strip of land lying to the north of Route 85; and parcel No. 67, an approximately 0.135-acre strip of land on the opposite side of Route 85. There is an additional 0.137-acre permanent easement for a stream channel, which is designated as parcel No. 68 (trial exh. 11, p 11; trial exh. C, p 18).

Sometime between May 30 or May 31 and June 1, 1995, Stilsing Electrical, Inc. ("Stilsing"), a subcontractor for August Bohl Contracting Company, Inc., the construction project's general manager, entered onto an unappropriated area of claimant's land and erected a pole connected with the supplying of electrical service for a temporary traffic light and pumps on the construction site (T 31-37, 41-49, 60-64, 114-118, 120). In order "to provide working room for putting up wires" for a meter (T 117), a number of native trees and shrubs were cut down, creating roughly 20 x 50-feet swaths of cleared land on both sides of a gravel driveway leading to a sandpit in a vacant portion of claimant's land (T 31-37, 41-49; see also, trial exhs. 6 [D] and 8, which contain photographs of the area taken by claimant's late father on June 22, 1995) After claimant complained, the pole was relocated off his property and the appropriated parcels were staked and partially fenced (T 48-49, 116-117). According to claimant, the loss of these trees and shrubs compromised his property's privacy and quietness (T 52-53).

Claimant further testified that he and his father had purchased the property in 1994 from friends of his father; that he had cared for the prior owners for at least five years before the sale; and that the property had never been listed for sale (T 11-12). In claimant's opinion, he and his father had "purchased [the property] for what we felt was substantially below fair market value" (T 12). On cross-examination, claimant conceded that neither he nor his father was related to the prior owners (T 54-55).

Finally, claimant acknowledged that in August 1996 he sold a roughly 5-acre portion of the property, which contained the two-story residence and the detached garage and sheds, for $96,500 (T 14-16). The purchasers had been renting and residing in the house (id.).

Claimant's appraiser, Leonard B. Berdan ("Berdan"), identified the property as consisting of a fee simple interest in 42.4 acres of vacant land; i.e., not including the roughly five-acre improved portion sold by claimant in August 1996 (trial exh. 11, pp 1, 6). At trial, Berdan testified that because "the appropriation had no perceivable effect on the residence," he "considered the property to be two economic units. That is the residence and five acres on the westerly side of the property having had no effect from the appropriation" (T 71; see also, T 96-97, 107-108).

Berdan opined that the Rensselaerville area of Albany County is a desirable secondary recreational home market area and, accordingly, the highest and best use of claimant's land in the before situation was as rural residential land appealing to the "large home site market" with some ancillary agricultural appeal (trial exh. 11, p 7; T 78). Using the sales comparison approach and relying on four comparable sales that occurred between 1992 and 1997 in Rensselaerville, Berdan estimated an adjusted per acre value ranging from $1,567 to $2,183; and the before value of claimant's land as $1,700 per acre or $72,000 (rounded) for the appraised 42.4 acres, of which he attributed $10,000 to the enhancement value of the property's trees and shrubs, which "added to the property, especially in the marketplace for people looking for secluded home sites in this type of location" (T 82-83; trial exh. 11, pp 9-10; see also, T 104, 111-112).

Berdan testified that "the property had adequate natural screening along either side of the road" (T 78); however, he also opined that the loss of vegetative screening near Route 85 resulting from the taking and the cutting of trees and shrubs on the unappropriated portion of the property had diminished the property's aesthetic and rural residential appeal (T 89; trial exh. 11, pp 11-12). Berdan accordingly concluded that the property's highest and best use in the after situation was "as rural residential land with limited appeal to the large home site market and with ancillary agricultural appeal" (T 89; trial exh. 11, p 12). Again using the sales comparison approach and relying on four comparable sales, Berdan estimated an adjusted per acre value ranging from $1,262 to $1,436; and the after value of claimant's land as $1,300 per acre or $55,000 (rounded) for the appraised 42.25 acres, of which he attributed $7,000 to the enhancement value of the property's trees and shrubs (T 89-90; trial exh. 11, pp 13-14).

Berdan therefore calculated total damages of $17,000 ($72,000-$55,000), allocated as follows: $260 for direct damages (0.154 acre @ $1,700 per acre); $13,565 for indirect or consequential damages due to the "loss of screening, seclusion and appeal"; $2,000 dollars for the loss of trees in the "fee area and trespass area" and $1,000 for the "[l]oss in value of remaining trees' desirability";[6] and $175 for direct damages for the permanent easement (trial exh. 11, p 15; T 90-92). He testified that roughly $460 of the $2,000 was attributable solely to the tree cutting in the unappropriated area; i.e., "I have total damages to the land improvements[7] of $2,000, of which I estimate roughly $460 to be attributed to the trespass de facto appropriation of the temporary easement" (T 91).

After the testimony of an employee of the Albany County Real Property Tax Service Agency, whom defendant State of New York ("defendant" or "the State") called for purposes of laying the foundation for the admission into evidence of trial exhibits A and B (T 121-130),[8] the State moved to strike claimant's appraisal for its failure to appraise the entire property as of the date of the taking and afterwards. That is, the State argued that claimant's appraisal was legally deficient because it was limited to the roughly 42 ± vacant acres and disregarded the five-acre improved portion. The State also based its motion to strike on claimant's failure to list the addresses of any of the grantors or grantees for its sales comparisons (T 99), as required by Court of Claims Act § 16 (T 131-132, def. Mem. of Law, Point I).

In response to defendant's motion, claimant argued that because the five-acre improved portion was unaffected by the appropriation or cutting of the trees and shrubs and was subsequently sold, the appraisal properly measured the before and after value of the vacant land as a separate economic unit (T 135-136, claimant's Mem. of Law, pp 2, 4). Claimant also argued that the complained about omission of grantors' and grantees' addresses did not prejudice the State, and that there was substantial compliance with Court of Claims Act § 16 (T 133-135; claimant's Mem. of Law, p 5). The Court reserved decision on the State's motion (T 136).

"It is settled that, as a general proposition, the measure of damages in partial taking cases is the difference between the value of the whole before the taking and the value of the remainder after the taking" (Diocese of Buffalo v State of New York, 24 NY2d 320, 323 [emphasis in original]; see, Acme Theatres v State of New York, 26 NY2d 385, 388; Matter of City of New York [Rockaway Beach], 288 NY 75, 77 ["The true measure of the damages to which claimant (is) entitled (is) the market value of the entire tract and improvements before the taking, less the value of the remainder after the taking"]). Here, claimant does not (and cannot) dispute that the appraiser never actually valued the whole of the property before the appropriation of parcel Nos. 66, 67 and 68 or the entire remainder afterwards.[9] Rather, the appraiser excluded the roughly five-acre improved portion from his analysis because of his determinations that the property was divisible into two separate economic units--an explanation first mentioned at trial (T 95)--and that the subsequently hived off five acres suffered no appropriation-related damage.

The Court has been unable to locate any case in which this fundamental deviation from the settled rule has been countenanced, and does not credit Berdan's post-appraisal explanation, which is not supported by the facts of this case anyhow.[10] The Court, therefore, grants the State's motion and strikes claimant's appraisal (see, Frank Micali Cadillac-Oldsmobile v State of New York, 104 AD2d 477, 479-480; Matter of Town of Brookhaven v Gold, 89 AD2d 963; 451 Miller Place Plaza, Inc. v State of New York, Court of Claims, Claim No. 93297, Dec. 29, 2000, Silverman, J. [State's appraisal struck for failure to value entire parcel before and after taking]; Greenhauff Properties v State of New York, Court of Claims, Claim No. 87613, Oct. 31, 1997 [same]; Centereach Car Care Center, Ltd. v State of New York, Court of Claims, Claim No. 87885, Silverman J., affd 271 AD2d 391, lv denied 95 NY2d 757 [court struck claimant's first appraisal, which failed to value entire parcel]; see also, Erie County Indus. Dev. Agency v Fry, 254 AD2d 721 [appraisal report that failed to set forth value of entire property before the taking and the value of the property after the taking was "fatally defective"]).[11] Having rejected claimant's appraisal, the Court must either accept the State's appraisal or support and explain any deviation from it (see, Matter of County of Dutchess [285 Mill St.], 186 AD2d 891; Zappavigna v State of New York, 186 AD2d 557, 560; Ridgeway Assoc. v State of New York, 32 AD2d 851).

The State's appraiser, Eugene C. Cross ("Cross") valued the parcel's highest and best use as an improved property and as vacant, and determined that under the former scenario its highest and best use was for a single family residence and under the latter, for single family residential development (trial exh. C, p 13). In determining the before value of the property as improved, Cross relied solely upon its very recent (less than six months prior to the appropriation) conveyance to claimant and his father. First, he adjusted the purchase price of $115,000 upwards to $120,000 to reflect improvements. Subtracting the sum of $72,750 that he attributed to land improvements and the buildings, Cross allocated $47,250 to the land component of the property and then utilized a comparable sales approach in which he looked at the property itself as well as two other 30- to 40-acre vacant parcels (trial exh. C, pp 14, 17).[12] Claimant takes issue with this approach, arguing that the conveyance was not an arm's length transaction because the grantors were close friends of claimant's father and claimant had taken care of grantors (or a grantor, the evidence is unclear) for a period of years before the sale (T 11-12).[13]

An arm's length transaction is defined as a "transaction between unrelated parties under no duress" (The American Institute of Real Estate Appraisers, The Appraisal of Real

, 305 [12th Ed. 2001]). Such a transaction has repeatedly been held to constitute evidence of the "highest rank" in determining the true market value of a property if recent in time and not explained away as abnormal (Plaza Hotel Assoc. v Wellington Assoc., 37 NY2d 273, 277; see, City of Newburgh v Kirchner, 234 AD2d 364; Leider v State of New York, 69 Misc 2d 998, 1002, affd 45 AD2d 82). Here, the Court finds that claimant's testimony did not establish that the transaction at issue was anything other than arm's length. His subjective view that the purchase price was substantially below market value is forcefully contradicted by the two comparable sales examined by Cross, both of which had per-acre values within $50 of the subject property's value (trial exh. C, p 14). Thus, Cross's consideration of this sale when determining the property's value as improved and as a basis for its value as vacant appears proper.

Based on his comparison of the sales price for two properties (sale No. 234, which was mostly open land and sale No. 233, which was wooded), Cross opined that the presence or absence of vegetation was not a significant market factor. Elaborating on this point at trial, he remarked that he had "seen that many times . . . some people want a wooded site, some people want an open site" (T 147-148; trial exh. C, p 15). The land was still essentially of the same character in the after scenario, absent the appropriations, and retained the same highest and best use of rural residential (T 148, 153; trial exh. C, p 18). Accordingly, Cross did not find any consequential damages to the remainder of the property as a result of the partial taking, and he calculated direct damages as follows: $28.50 for the fee interest taken in parcel No. 66 (0.019 of an acre @ $1,500 per acre); $20.25 for the fee interest taken in parcel No. 67, which Cross deemed to be within wetlands (0.135 of an acre @ $150 per acre); and $18.49 for the permanent easement on parcel No. 68, which Cross also valued as wetlands (0.137 of an acre @ 90% of $150 per acre).

Based on Cross's testimony that roughly 5% of parcel No. 67 was not within wetlands and that parcel No. 68 does not touch wetlands (T 152-153), the Court adjusts his damage calculations as follows: for parcel No. 67, damages are increased from $20.25 to $29.70 in consideration of the roughly 5 % of the parcel that is not wetlands (i.e., 0.05 % of 0.135 of an acre = .007 [rounded] x $1,500 per acre = $10.50 plus 0.128 of an acre (0.135 of an acre
0.007 of an acre) x $150 per acre = $19.20). Based on a value of $1,500 per acre, the Court accordingly calculates direct damages for parcel No. 68 as $184.95 (0.137 of an acre x $1,500 per acre = 205.50 @ 90% = $184.95). Thus, direct damages for parcels Nos. 66, 67 and 68 total $243 (rounded). Based on its viewing of the property, the Court agrees with Cross that the permanent takings at issue did not result in any consequential damages to the remainder of claimant's property.

Next, as noted previously, claimant takes the position that the cutting of the trees and shrubs and placement of the pole on an unappropriated area of his property amounted to a de facto appropriation of a temporary easement (see, e.g., T 85-87). That is, it was a privileged entrance pursuant to Highway Law § 30 (17) for which the State may be held liable (claimant's Mem. of Law, p 3, citing Di Bacco v State of New York, 42 AD2d 364, supra). The State, as it had on a prior motion to dismiss (Britton v State of New York, Ct Cl, unreported decision filed July 5, 2000, Read, P. J., M-60240), urges that what occurred was a trespass by an independent contractor, which is untimely pleaded and, in any event, not attributable to the State (def. Mem. of Law, Point II).

In light of the facts developed at trial, the damage to claimant's unappropriated land appears compensable under subsection 14 of section 30 of the Highway Law, which specifies that "[i]f the work of construction or reconstruction of any highway project shall cause actual damage to property not acquired . . ., the [S]tate shall be liable therefor" (Highway Law § 30 [14]). This section has been recognized as creating a "nondelegable duty" and simply requires the claimant to show that his property was damaged as a result of a road construction or reconstruction project (see, State of New York v J.D. Posillico Inc., 277 AD2d 753; DSS Enters. v State of New York, 162 AD2d 1027). There is no requirement that any particular negligent act or omission be attributable to the State (see, id.).

Here, there is no question that the damage to claimant's unappropriated land was related to the State's road construction project. The only issue is the amount of damages that claimant suffered as a result, which Cross calculated by utilizing a temporary easement formula; i.e., the "loss in rental value, plus further loss, if any, resulting from damages to the fee arising from the use of the easement" (Kauffman v State of New York, 43 AD2d 1004, affd 36 NY2d 745). Based on a two-day rental value on the roughly 0.04 acre parcel, Cross estimated damages in the amount of one dollar. The only other item of damage that Cross included was $112 (rounded) to represent the cost to remove the felled trees from the property. Overall, Cross estimated damages of $125 on account of the approximately two-day incursion onto and cutting of trees and shrubs from the unappropriated property (trial exh. C, p 24).

Based on a viewing of the property, review of the pictures accepted into evidence and the trial testimony, the Court concludes that this is a proper measure of damages for the roughly 57 lost native trees. The Court, therefore, accepts this figure and awards claimant an additional $125 pursuant to Highway Law § 30 (14) for the damage to his unappropriated property.


In summary and based on the foregoing, the Court grants defendant's motion to strike and denies any other motions on which decision was reserved at trial; and awards claimant direct damages in the amount of $243 (rounded) relating to the State's appropriation of parcel Nos. 66, 67 and 68; and awards additional damages in the amount of $125 pursuant to Highway Law § 30 (14) for the clearing of trees and shrubs from a roughly 15 x 120-foot strip of claimant's unappropriated land. The Court therefore awards total damages in the amount of $368. Statutory interest for the appropriation related award shall run from March 14, 1995 to September 14, 1995, and then from August 21, 1997 to date of decision and thereafter to date of judgment. Statutory interest on the Highway Law § 30 (14) award shall run from May 30, 1995 (the first day of the entrance) to November 30, 1995, and then from August 21, 1997 to date of decision and thereafter to date of judgment.

This award to claimant 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 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.

The Chief Clerk is directed to enter judgment accordingly.

August 28, 2002
Albany, New York

Judge of the Court of Claims

[1]"T" followed by a number(s) refers to the corresponding page(s) of the trial transcript.
[2]The Court adopts this map and the descriptions in it, which are incorporated by reference in this decision.
[3]The map, containing signatures dated March 25, 1994 and April 21, 1994, lists claimant's predecessors in title as the reputed owners.
[4]After his father's death, claimant, individually and as administrator of his father's estate, conveyed title to the property to himself by deed dated December 4, 1996 (exh. 4 annexed to claimant's motion papers, Motion No. M-63323).
[5]There is a discrepancy in total acreage between what claimant listed on his Real Property Transfer Report (45 ± acres [trial exh. A]) and what is presented in the deed conveying the property to claimant and his father (47 ± acres) (trial exh. 3, Schedule A).
[6]This latter component of the alleged damages was unexplained at trial.
[7]The improvements to which Berdan refers are evidently the native trees and shrubs, which he characterizes "land improvements" (T 90-91).
[8]Trial exhibits A and B are State Board of Equalization and Assessment Real Property Transfer Reports. Exhibit A is the transfer report regarding the sale from Virginia Turpin and Edward Hale to claimant and his father for $115,000. The box and supporting explanation lines for "Other Unusual Factors Affecting Sale Price (Specify Below)" were left blank, which, according to the State, supports its position that the sale of the property shortly before its appropriation was an arm's length transaction (Defendant's Post-Trial Memorandum of Law ["def. Mem. of Law"], Point III).
[9]Claimant's appraisal appears to have been completed in April 1999 and Berdan testified that the photographs of the property and his first examination of it occurred in June 1998, almost two years after the five-acre improved portion had been sold.
[10]Relevant factors bearing on whether a separate economic unit exists for valuation purposes include the parcel's (1) unity of use, (2) unity of ownership, and (3) contiguity or proximity as it relates to the property's highest and best use (see, Montague, The Role of the "Separate Economic Unit" in the Determination of Just Compensation, American Law Institute-American Bar Association Continuing Legal Education, SG059 ALI-ABA 129, quoting The Dictionary of Real Estate Appraisal [Appraisal Institute 3d ed]), all of which suggest that the entire parcel is the separate economic unit.

[11]As will subsequently appear, the striking of claimant's appraisal but negligibly affects the award in this claim. For one thing, the Court does not find that any loss of screening diminished the property's value. Moreover, although claimant's appraiser estimated a higher per acre value for the property than did the State's appraiser, the size of the area appropriated is so small that direct damages are de minimis.

[12]The American Institute of Real Estate Appraisers, The Appraisal of Real Estate (12th Ed. 2001) suggests, at page 320, that if a separate valuation of land is presented in the appraisal, the report should include the highest and best use of the land as both improved and as vacant. Since both parties acknowledged that there was no damage to the area where the house and other buildings were located, the Court cannot fault the State's appraiser for the appraisal method he applied (i.e, backing the value of the improvements out of the value of the whole and then comparing the land as vacant).
[13]Contrary to counsel's contention in claimant's post-trial brief, there was no evidence offered at trial to indicate that Mrs. Hale, a grantor, wanted to sell due to her advanced age or desire to move to a more urban environment (Claimant's Mem. of Law, p 11). Even if true, it does not follow that such circumstances would incline or impel Mrs. Hale to accept from the grantees less than what the property was worth.