New York State Court of Claims

New York State Court of Claims

KER-MART v. THE STATE OF NEW YORK, #2002-028-508, Claim No. 96798


Case Information

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:
Defendant's attorney:
BY: Rose F. Lowe, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely served and filed Claim for damages resulting from the partial appropriation of real property owned by Claimant and a temporary easement thereon located in the Town of Smithtown, Suffolk County. Such premises were appropriated in proceedings entitled "Jericho Turnpike, S.H. 5112" Map 227, Parcel 293 and Map 320, Parcel 388, respectively, pursuant to section 30 of the Highway Law and the Eminent Domain Procedure Law (EDPL). The Maps describing the appropriated parcel and temporary easement were stipulated into evidence by the parties (Exhibit 2 and Exhibit 3, respectively) and said map and the descriptions set forth thereon are adopted by the Court and incorporated herein by reference. The parties stipulated that the date of taking was October 7, 1994, and the Court so finds. The parties further stipulated and the Court finds that Claimant was the fee owner on the date of vesting and the Defendant has complied with all necessary procedures under the EDPL with regard to service. The Court has viewed the subject property.
The subject property is located on the south side of Jericho Turnpike. It is regular in shape and can be described as a trapezoid, with the front and rear property lines being parallel. The subject has approximately 160 feet of frontage on its northerly property line along Jericho Turnpike and is near street level. The property narrows slightly from front to back with the property rising to the rear property line. The subject is approximately 153 feet deep. The parcel was 23,000 square feet (sf) prior to the taking. The taking amounted to 674 SF (T-4; Exhibit 2) consisting of an approximately four foot wide strip running the length of the subject's frontage on Jericho Turnpike. The parties stipulated that the temporary easement consisted of 1585 sf and was in place for 46.5 months (T-5). The remainder of the parcel was vacant undeveloped land. The subject parcel was zoned "WSI", for wholesale and service industries.
Each party called their respective real estate appraiser to testify. In addition, Claimant called to testify an engineer. The parties stipulated that each professional was an expert in their respective field.
Claimant's first witness was Steven Schneider (Schneider), a licensed professional engineer who was hired by the Claimant to analyze the subject's development potential in the pre-taking and post-taking situations (T-7). In preparing his report (Exhibit 5), Schneider assumed the subject would be developed with an automotive repair facility (T-10-11). According to Schneider, the proposed development would require a variance (T-12 ["major zoning relief"]) in both the before and after situation, from the set back requirement that any structure be located ten feet from the toe of a slope, as his proposed building is "right up to the toe of the slope" (Id.). The proposed building location was intended to "avoid putting in any expensive retaining walls" (T-14, 63). The proposed development would also require a special use permit and a variance from the parking requirements (Id.). Schneider proposed, both in the before and after situation, that parking spaces within the repair facility would count toward any required parking (T- 31). Schneider testified that the necessary approval for this proposed development would be obtained. In Schneider's opinion, in the before situation, the subject could support a 1433 sf building with four repair bays (T- 13-14) representing 6.27 % of lot coverage. In the after situation, only a 940 sf, two bay building could be supported by the subject (T-15-16) representing 4.24% of lot coverage. Schneider testified that there were no extraordinary development costs associated with preparing the subject for development in either the before or after situation (T-47, 51-52). Schneider, however, provided conflicting testimony regarding the grading of the subject, at one point acknowledging that the grade increased approximately twelve feet (T-43, 44) within the area planned for the building, then later stating there was no change in elevation from the front property line (T-53-54).
Sanford S. Brunswick (Brunswick), testified for the Claimant. Brunswick identified his appraisal report ( Exhibit 6). Brunswick testified that the highest and best use of the subject parcel in the before situation was for commercial development (T-77-78) specifically, an automotive repair facility with a 1,433 sf building situate thereon (T-85). Brunswick acknowledged that the rear half of the subject "runs sharply up the hill" (T-77-78) and, in his opinion, only the front half of the property can be used for development. Given the proposed use, a number of variances would be required, and were, according to Brunswick obtainable (T-78-79). Using the market data approach and three comparable sales all from within the Town of Smithtown, Brunswick, following adjustments, arrived at a before taking range of value from $6.28/sf to $10.78/sf and concluded the subject had a before value of $9.00/sf (T-80-84, Exhibit 6, p. 31). Brunswick, using the same comparable sales, and following adjustments, arrived at an after taking range of value from $2.64/sf to $3.80/sf and concluded the subject had an after taking value of $3.75/sf (T-85-87, Exhibit 6, p. 35). In arriving at the after value, Brunswick testified that the reduction in the property's utility due to a reduction in size of the structure's footprint, which Brunswick termed "coverage ratio" (T-86), negatively affected marketability (Id.). Brunswick opined that the relatively small taking had a disproportional affect on the structure's size (T-85) as the problems become "pronounced" (T-86). Claimant's expert allocated damages as follows: total damages of $123,000.00 (R) calculated before value [22,854 sf times $9.00/sf = 206,000.00 (R)] less the after value [remainder area 22,180 sf times $3.75/sf = $83,000.00 (R)] ; direct damages of $6,075.00 (675 sf taken times $9.00/sf) and indirect damages of $116,445.00 (T-88, Exhibit 6, p. 37)
Defendant's expert, Theodore J. Powers (Powers), in his appraisal report (Exhibit A), identified the parcel as being 23,100 sf and ascertained its highest and best use to be for "commercial uses" (Exhibit A, p.27). Powers described the subject as "basically a's the side of a hill"(T-111) remaining fairly level for the first ten feet then "goes pretty much up at...a 45 degree angle" (Id.). Using the "sales comparison approach" and four comparable sales (T-114), Powers, following adjustments, arrived at a before taking range of value from $3.00/sf to $6.47/ sf and concluded the subject had a before value of $4.50/sf ( Exhibit A, p.31). Powers, using the same comparable sales, made no adjustments for the after taking situation (see, Exhibit A, p. 52) and concluded the State's taking did not "measurably alter the unit value of the subject." (Id.) Powers valued the remainder of the property at $100,920.00 (R) in the after situation (22,426 sf times $4.50/sf ) and established Claimant's direct damages at $3,030.00 (103,950.00 less 100,920.00) (Exhibit A, p.1). Powers found no severance damages.[1]
The parties dispute can be summarized briefly as follows: Claimant asserts that the subject is susceptible to development both in the before and after situation. To support its development, variances and a special use permit would be obtained. The property could be regraded to permit development without costly retaining walls. The Defendant maintains, inter alia, that no such development is feasible without significant expense.
The Court is required to value the subject property according to its highest and best use as of the date of vesting (Matter of Town of Islip [Mascioli], 49 NY2d 354, 360; Matter of County of Clinton [Gagnon], 204 AD2d 898, 899). "Highest and best use" is generally defined as "reasonably probable and legal use . . . that is physically possible, appropriately supported, and financially feasible and that results in the highest value" (American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 305 [12th Ed. 2001]). Both appraisers agreed on this standard.
It is equally well settled law that a party asserting a different highest and best use from the one existing at the time of the condemnation has the burden of proving a reasonable probability that the highest and best use it asserts would or could have been made of the subject property in the near future (Thompson v Erie County, Indus. Develop. Agency, 251 AD2d 1026; Matter of Rochester Urban Renewal Agency v Lee, 83 AD2d 770; see, Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, rearg denied, 34 NY2d 916), including re-zoning (cf., Masten v State of New York, 11 AD2d 370, affd 9 NY2d 796; Matter of Town of Islip (Hamlet of Sayville), 49 NY2d 354; Harwood v State of New York, 112 AD2d 741; Dittmer v State of New York, 187 AD2d 693). Claimant's evidence to establish the likelihood of its posited highest and best use, to wit commercial development as an automotive repair facility, was feasible, consisted of a conversation each by its appraiser and engineer with Town of Smithtown officials and copies of variances permitting intrusion into or building within 10 feet of a slope and altering slopes in excess of 15%, albeit with retaining walls (see, Exhibit 6, Addenda; see also, Exhibit D and T-27-28, 55). In the Court's view, the Claimant has failed to carry its burden that the automotive repair facility, as designed, would be approved. Schneider's testimony regarding the conversations with Town officials was vague and conclusory (T-31-32). There is no proof that indoor parking would be approved (see, J. W. Mays, Inc. v State of New York __AD2d__, 743 NYS2d 544). Moreover, while Brunswick established that an automotive repair facility would receive a special use permit in the WSI zone, the documentary evidence does not permit the Court to conclude that a variance to cozy up to the slope, without a retaining wall, would be permitted. Rather, the documentary evidence compels the opposite conclusion. (compare, Turiano v State of New York, Ct Cl, Nadel, J., Claim No. 70854, UID #2000-014-102, July 7, 2000[2], [the opinion of claimant's expert architect and zoning expert, that approvals would have been obtained "were expressed fully and cogently in their testimony and in their reports"]).
Moreover, the Court has viewed the subject parcel and rejects Claimant's engineering expert's testimony that regrading the parcel to a level building site and regrading the rear hill to obviate the need for a retaining wall is feasible in either the before or after situation and that such efforts would be ordinary development costs (International Salt Co. v State, 125 Misc 2d 939, 940 [the right possessed by the trier of fact to view the premises may be added justification to disregard expert testimony]). Despite the appraiser's and the engineer's efforts to minimize this defect in the property, the fact remains the parcel in large measure is a hill.
Because of these evidentiary deficiencies, the Claimant failed to carry its burden to furnish a basis from which a reasonable estimate of its purported consequential damages could be made ( J. W. Mays, Inc. v State of New York __AD2d__, 743 NYS2d 544, supra). Put another way, Claimant has failed to establish that the potential development of the property has been reduced (see, Split Rock Partnership v State of New York, 275 AD2d 450). After hearing all of the proof, and giving due consideration to the testimony and analysis of both appraisers, the court finds the Claimant suffered no consequential or severance damages to the subject property as a result of this taking.
The Court finds the only damages suffered by the claimant as a result of this taking are direct damages for the land taken by the appropriation and the value of the temporary easement.
Turning now to the particular sales, the Court notes that Claimant's Sale 3 (Exhibit 6, p. 31) and Defendant's Sale 2 (Exhibit A, p. 33) are sales in common utilized by the appraisers,[3] and the Court has placed heaviest reliance on that sale (see, Matter of Vill. of Johnson City [Waldo's, Inc.], 215 AD2d 917, 918). The common sale abuts the subject's eastern boundary. It is a sale from July 22, 1992 comprised of just under 18,317 sf, and like the subject, is zoned WSI. As such, no adjustment is required for zoning. The Court likewise accepts the appraisers' analysis that no adjustments are necessary for time, location, frontage or size. However, as noted the Court has rejected Claimant's analysis and therefore, the Court adopts the valuation estimates made by Defendant's appraiser, which includes a negative adjustment of 20% for the topography. Accordingly, the Court finds the value of the subject in both the before and after situation to be $7.12/sf.
Thus, damages are calculated as follows: 674 sf taken at $7.12/sf equals $4,799.00 (R). Pursuant to the parties' stipulation, which the Court adopts, the temporary easement was in place for 46.5 months and had a fair rental value of $53.50 per month (T-5). Thus, Claimant is entitled to $2,488.00 (R) for the temporary easement. Thus, the Court awards Claimant the sum of $7,287.00 with interest thereon from October 7, 1994 (date of taking), to April 7, 1995 (six months subsequent to date of taking) and from August 14, 1997 (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, 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.

October 8, 2002
Albany, New York

Judge of the Court of Claims

[1] On direct examination, a model of brevity, Defendant's expert did not identify the subject's highest and best use in either the before or after situation nor did he provide any elucidation of his report. The Court's recitation of his findings are culled from his report.
[2] Decisions of the Court of Claims are available in a searchable database on the internet, free of charge. Access may be gained through the Court of Claims website at
[3] The parties stipulated that the square foot size of the comparable was 18,317 sf resulting in a value of $8.19/sf before adjustments.