New York State Court of Claims

New York State Court of Claims

CLAIRCUK v. THE STATE OF NEW YORK, #2002-030-002, Claim No. 92044


Partial appropriation. Loss of parking within local zoning code's setback area had a quantifiable aspect in the market place and was therefore compensable. Filed appraisal report is an admission, tending to prove a fact in issue. Counsel's obligation in adversarial proceeding to probe the bases for a witness' opinions, expressed in the appraisal report and in testimony, is not precluded because of facts asserted in the report

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:
Third-party defendant's attorney:

Signature date:
January 9, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This timely filed claim seeks damages for the partial appropriation of Claimant's property pursuant to Eminent Domain Procedure Law and § 30 of the Highway Law, in a proceeding entitled "Port Jefferson-Riverhead Part 2A S.H. 5674", the property being located in Suffolk County, as reflected in Map No. 69, Parcel No. 72. [Exhibit "3"]. The parties have stipulated that vesting occurred on September 13, 1994, and that the Claim was filed on June 29, 1995. [Exhibit "2"]. The parties stipulated that the last Deed of record was recorded in Liber 1053, Page 131 for premises known as District 0200, Section 77, Block 11 and Lot 15 on the Suffolk County Tax Assessment Map, and reflects the owner of the property as this claimant. [Exhibit "1"]. The deed, appropriation maps and descriptions contained therein are adopted by the Court and incorporated herein by reference. The Court has made the required viewing of the property which is the subject of this claim.

Both parties' appraisers conclude that the Claimant is the owner of the subject property [Exhibits 4 and 13 ]. The Court finds that the Claimant has established title to the subject property.

To this Court's knowledge, this claim has not been assigned or submitted to any other court, tribunal or officer for audit or determination.
Preliminary Issues
Throughout these proceedings, counsel for the parties engaged in debate concerning, among other things, the evidentiary role of filed appraisal reports in appropriation proceedings brought in this Court, the burden of proof with respect to an appropriation claim, the existence of an implied easement by necessity over adjoining property, and allegations by counsel for claimant of frivolous conduct on the part of counsel for the state. These issues were briefed by each in post trial memoranda of law, and reviewed by this court, except as to those portions of the memoranda referencing post trial evidentiary submissions, which have not been considered.

The particular thorn in Claimant's counsel's side concerned the before value stated in the State's appraisal filed and exchanged pursuant to 22 NYCRR §206.21 and §16 Court of Claims Act. The before value stated therein was higher than that stated in Claimant's expert's appraisal report. Claimant's counsel maintained that the appraisal report filed by the State constituted an admission, and any cross-examination of Claimant's expert in contravention of seeming admissions within the State's appraisal was inappropriate, especially with respect to the stated before value of the subject property. In support of his argument concerning admissions, Counsel for Claimant made reference to
Wantagh Racquet Sports, Inc. v Board of Assessors of Nassau County, 133 AD2d 766 2d Dept. 1987), appeal denied, 70 NY2d 614 (1987), Niagara Falls Urban Renewal Agency v Clifton Holding Inc., 43 AD2d 900 (4th Dept. 1974) and Sullivan v State of New York, 57 Misc 2d 308 (NY Ct Claims 1968).
The State argued that the contents of its appraisal serve the notice function of a just compensation case, for the purpose of "...enabl[ing]...adequate and intelligent preparation of the issues for trial...(
citation omitted) and to limit expert testimony at trial." Matter of Town of Guilderland, 267 AD2d 837, 838 (3d Dept. 1999). Until the State places it in evidence, the State would not be bound by its contents, especially in light of the State's position in the case at bar that based on analysis of Claimant's expert's appraisal, Claimant would not establish a prima facie case, and a dismissal motion would be warranted at the close of Claimant's case. In the same connection, how Claimant's expert arrived at his before values, and what factors he used in his analysis was, in the State's view, proper cross-examination, both as to the substance of Claimant's appraisal, and as to the expert's credibility.
Certainly, filed appraisal reports serve a notice function, but are not evidence until they are admitted into evidence. This was noted in
Matter of Town of Guilderland, supra, albeit in a context distinct from the facts in the case at bar. There, claimant had attempted to use his opponent's appraisal, which contained a higher before value than that stated in his own appraisal, to conclude the issue of damages by summary judgment. The Third Department stated: "The argument is specious. The appraisal report is not in itself evidence....It is not intended as a substitute for evidence...(citation omitted). A trial is required to place the appraisal reports and other evidence before the trier of fact to establish the value of the property taken." Matter of Town of Guilderland, supra, at 838.
Homer v State of New York, 36 AD2d 333, 334 (3d Dept. 1971), the Third Department was concerned with the apparent practice of allowing appraisals to "...take the place of evidence...(citation omitted), [when the appraisal's] function is to supplement the evidence given by the person under whose direction it is prepared. The appraisal should be utilized as a tool which, by adequate examination of its author, helps explain fully to the trial court what the theory of the party introducing the appraisals is so that the trier of the facts is made fully cognizant of what issues are involved in the proceeding...." Id. It seems the appraisals were "...introduc[ed]...into evidence without any particular attempt by the appraiser's proponent to elaborate upon the matters contained therein." There is no indication as to whether it was the State or the Claimant - or both - who failed to "...delv[e]...into the aspects underlying the appraisal...." Id.[1]
Wantagh Racquet Sports, Inc. v Board of Assessors of Nassau County, supra, at 768, in a proceeding brought to review tax assessments, the Second Department agreed with the taxpayer's assertion that the lower court erred in drawing valuation conclusions exceeding those of either appraiser, and noted that "...the county appraisal expert's report is tantamount to and should be deemed a concession that the assessments...should be reduced by the amounts stated in his report."
Niagara Falls Urban Renewal Agency v Clifton Holding, Inc., supra, the Fourth Department reversed the County Court in a condemnation proceeding with respect to its failure to admit a second appraisal. The lower court had denominated the second appraisal as a "...'backup appraisal' used by the Federal Government merely to establish a maximum acquisition price in the negotiations to purchase a defendant's property....", finding, therefore, that it was "...'not discoverable nor admissible in evidence'...." Id., 900. The Fourth Department said "It should be recognized that the appraisals prepared by the agency were not ‘material prepared for litigation' or at least this was not the main purpose behind their preparation. They were designed for submission to the Federal Government to accommodate and comply with Federal regulations concerning urban renewal [requiring two appraisals] for obtaining funds and as such were adopted by the Urban Renewal Agency for a purpose connected with the case other than for settlement, purchase or advance payments and were properly discoverable..." Id., 901.
Finally, claimant cited to
Sullivan v State of New York, supra at 309, decided in this Court. In that case, the Court of Claims disapproved of Claimant's eliciting testimony from a State witness concerning an earlier appraisal, not offered in evidence, which contained a higher damage figure than the State appraisal admitted in evidence. In deciding to strike the testimony, the Court briefly summarized the use of appraisals in appropriation proceedings brought in the Court of Claims. The Court stated: "...[A]n appraisal prepared by an expert who is not called as a witness and which was intended to be utilized solely for litigation; or, for negotiation in an effort to accomplish a settlement prior to trial; or, to establish a basis for the partial payment to be made to the claimant pursuant to...[§30(15)] Highway Law, is not admissible on the trial....(citations omitted)" Id. at 309. One exception noted would be when the witness, or a member of his firm, testifies, and the appraisal is used to impeach his testimony. The Court also noted "...all appraisals filed under rule 25a of the Rules of the Court of Claims [predecessor section to 22 NYCRR § 206.21], whether made by the witness called to testify or by another appraiser totally unrelated to said witness, may be utilized by an adversary as an admission against interest relative to factual descriptive data, the before and after market values and the damage figures."[2] Id. at 309.
In this Court's view, both counsel have strained a reading of the case law presented, or at least mixed the proverbial apples and oranges. The fact that an appraisal report filed pursuant to court rule is an "admission," is one "apple" that has very little to do with the "orange" of opposing counsel's right to cross-examine a witness placed on the stand by his adversary. It is axiomatic that an admission is just one item of evidence, once admitted, which might tend to prove a fact in issue. This has nothing to do with counsel's obligation in an adversarial proceeding to probe the bases for opposing counsel's witness' opinions. The cases cited, are simply not on point. Claimant's continuing objection to the State's cross-examination of Claimant's expert, concerning how he arrived at his before value among other things, reserved on at the time of trial, is overruled.
The property is located on the south side of Route 25A approximately 25 to 30 feet east of Broadway - essentially an unimproved street before the taking - in the Hamlet of Rocky Point. Prior to the taking it consisted of a rectangular shaped parcel, 2,866 square feet in size, with 19 feet of frontage on Route 25A. It is improved by a 2000 square foot concrete block structure, which shares a party wall with an adjacent commercial building to the west. It contains retail and storage space, and was built in 1959, prior to the enactment of the now applicable Zoning Code for the Town of Brookhaven. Before the taking, its primary use had been as a retail liquor store. The same type of store exists after the taking. The Court notes - as testified to by the Claimant's expert - that its patrons were drawn from the local community, with little customer flow from the more general public at large. There was, and is, an of record rear yard easement for deliveries and refuse pick up. There are no other easements of record.

The Town of Brookhaven Zoning Code (hereafter Code) in force at the time of the taking required a front yard setback in the J-2 Business zone of 15 feet [ Exhibit "W", Code § 85.356 (A)]. Under the Code, minimum lot size is 4000 square feet, minimum road frontage is 40 feet, and, generally, up to 50% of the lot may be used for building. One parking space per 150 square feet of total floor area of the building is required. For the subject improvement's size, 13 spaces would be required under the Code.

The partial taking consisted of a roughly triangular shaped parcel of 72 square feet improved by asphaltic paving at the northwest corner of the property, as part of an overall project to create a bypass to Route 25A and to round the corner to create a through street - from what had been more of an access road - out of Broadway. Immediately behind the property is a municipal parking lot, reached by the use of the "new" Broadway. [Exhibits "N" and "O"].
Both appraisers concluded that the highest and best use for the subject property would be its use both before and after the taking as a commercial retail business. As noted, the subject site is already developed with a retail building of a size no longer permissible, and is grand fathered as a legal non-conforming use. The Court concurs in those opinions. Part of the parcel lies in a residentially zoned area, but this use - at least as established by the record - has not been a consideration.
Each appraiser used the income approach to value, as well as the sales comparison approach to value in his report, but relied exclusively on the sales comparison approach to value to discuss the value of the subject property in the before and after situation at trial. Indeed, it was their opinion that the small retail operation use enjoyed by the subject property - as opposed to a big, strip mall type operation - is generally owner occupied and therefore less amenable to valuation from an income approach. Accordingly, although the Court has examined the income approach to valuation explored by the experts, it has relied primarily on the sales comparison approach to value of the land as vacant, and as improved, as the best indication of value.
Vacant Land
With respect to the land as vacant, Claimant's expert placed a value of $30,000.00 upon the entire parcel based upon a vacant land value of $10.50 per square foot (2,866 square feet x $10.50 per square foot). Defendant's expert valued the subject parcel as vacant land at $48,5000, based upon $16.85 per square foot (2,869 x $16.85 per square foot). The Court notes that sales numbered "2" and "B", and "1" and "D", by the Claimant and the Defendant in their respective appraisals, are the same. The sales comparables used were generally larger and more capable of full development, without the limitations of the subject property. Indeed, the State's appraiser noted in his report that "...larger parcel[s] tend to sell at lower unit values than smaller parcels...", and adjusted the vacant land comparables upward for this factor. [Exhibit "13", Page 18]. The Claimant's appraiser made the same notation, and made a 15-20% positive adjustment based on this factor for all the comparables.

Claimant's expert notes that with respect to vacant land sale number "1" (State's "D"), because it has an irregular shape, as does the subject property, it's comparable for the shape/utility factor [Exhibit "4", Page 64]. Vacant land sale number "2" (State's "B"), claimant's expert opines, is a more regular shaped parcel, and is given a negative adjustment of 20% in the before situation. The State's expert notes the irregularity, but does not make a separate adjustment for it but appears to include size, shape and utility together, with a net positive.

In this court's view, the most comparable sale appears to be vacant land sale "2" (State's "B"), located as it is on Route 25A, and finds a negative adjustment is warranted in the before situation with respect to shape and utility, although not as high as that proposed by Claimant's expert. The Court also finds merit in the State's notation that larger parcels tend to have lower cost per square foot, warranting a positive adjustment. Additionally, the Court agrees that the zoning factor does not require a negative adjustment given the legal non-conforming use, nor does the Court find there is a reason for the frontage and coverage adjustments included by Claimant's appraiser.

The Court finds that the appropriate positive adjustment for the superior size of the comparable sale is 20%, and the proper negative adjustment for the inferior shape/utility is 15%. The Court finds that the appropriate value to be given the vacant land in the before situation is $14.77 per square foot. In the before situation, the value of the subject parcel as if vacant land is therefore $42,000.00 (R) (2,866 square feet x $14.77 per square foot).

In the after situation, as noted by Claimant's expert, the lot shape of the subject is further compromised for development by the taking. A greater negative adjustment for the vacant land of the same comparable selected as the most "substitutable" is warranted. The Court finds that the negative adjustment should be 20%. Similarly, in the after situation the superior size of the comparable is accentuated, warranting a positive adjustment of 25%, resulting in a value per square foot in the after situation for the subject parcel of $14.77 per square foot. Accordingly, the Court finds that the value of the subject parcel as vacant land in the after situation is $41,000.00 (R) (2794 square feet x $14.77 per square foot).
The asphaltic paving improvement
Both appraisers mention that the front portion of Claimant's property was improved by asphaltic paving. Defendant's appraiser ascribes a nominal value of $100.00 for the improvement. [Exhibit 13, Page 43]. No other basis for value having been furnished, and the amount stated appearing reasonable, the Court finds that the value of the asphaltic paving is in the amount of $100.00.
Improved Sales
In addition to direct damages, the State may be liable for consequential or severance damages based upon any diminution in value of the remaining property as a result of the partial taking. The measure of damages is "...the difference between the fair market value of the whole before the taking and the fair market value of the remainder after the taking....(
citations omitted)." Acme Theatres, Inc. v State of New York, 26 NY2d 385,388 (1970).
Both appraisers favored the market sales approach to arrive at a value for the subject property. Claimant's expert noted that "small properties like this tend to be more likely owner occupied rather than owned for investment."[3]
Given that emphasis in approach, this Court has primarily relied upon those improved sales discussed by the experts. The most controversial aspect of the valuation approach taken by the parties' experts concerned their respective analyses of the existence of parking before the taking, and the right of access to Route 25A. These distinctions in approach resulted in a marked difference between Claimant's claim for direct and severance damages in the amount of $90,000, and the State's offer of $1300.00 representing only direct damages.
Claimant's expert testified that in the before situation, the property had two parking spaces, generally used "head on" via access from Route 25A over the "de minimus" curb (grade level), or via curb cuts fronting on Route 25A across adjoining landowners' properties. The spaces were unmarked, and not otherwise differentiated in any fashion. [Exhibits 5,6,7]. After the taking, Claimant's expert claims both spaces were gone. Defendant's engineering expert, noted that "at best" there had been space within the owner's property line to park two cars before the taking, by crossing adjoining landowners' properties,[Exhibits Q, R], and that one space remained after the taking within the owner's property line. [Exhibits E, F, G, H, I, J, K]. Defendant's appraisal expert did not consider the alleged loss at all in approaching his valuation analysis, opining that because the spots were not "legal", they would not constitute a compensable loss.

D'Angelo v State of New York, 253 AD2d 733, 734 (2d Dept. 1998), the Appellate Division affirmed the finding by the Court of Claims that two parking spaces claimed to be lost by the taking "...encroached upon the State's right-of-way, [and thus] were not compensable ...(citations omitted)." The Court of Claims "...properly made downward adjustments to both parties' comparable sales and leases in making its determination."Id.[4]
Of course, a right-of-way, or an easement inuring to the State's benefit, is different from otherwise unencumbered property owned by a citizen who allows parking on his property not allowed by local zoning codes as an alleged attribute of his legal, non-conforming use. Whether the difference is meaningful in terms of severance damages is another question.

Two cases decided this past year in the Court of Claims are instructive. In
Brunner v State of New York, Claim No. 99369, (NeMoyer, J., 2001), the Claimant operated an automobile repair shop which the State acknowledged had two legal parking spaces in the front, prior to the taking. Claimant's appraiser maintained that all parking was eliminated in front of the building after the taking. Defendant's appraiser indicated one spot was left, but also admitted that during the winter months all parking could effectively be eliminated because of snow removal problems. The Court agreed with the Defendant's appraiser that there remained one spot after the taking. Given that posture, both appraisers addressed parking, legal or otherwise, in their appraisals, thus allowing for the diminution in value to be inclusive of adjustments for less parking.
One week later in
Zlatev v State of New York, Claim No. 99523 (NeMoyer, J., 2001), parking illegal under the local zoning code was at issue. Zlatev, supra, involved a claim by a tavern owner that he lost five parking spots in the front of his establishment as a result of the State's appropriation. The State used the same zoning enforcement officer it had used as a witness in the Brunner claim, but took a contrary legal position. In Brunner, the witness had indicated that the automobile repair shop was a grandfathered legal non-conforming use inclusive of parking. In Zlatev, supra the same witness asserted that although the tavern operated as a grandfathered legal non-conforming use, the parking was not included in the use. The Court concluded that legal or not the claimant had lost parking, although not in the amount claimed.
This Court finds a distinction between a taking which includes a right-of-way, or other legal entitlement already benefitting the State [
See, e.g., D'Angelo v State of New York, supra; Fatone v City of Troy, supra; Dumala v State of New York, supra], and the taking at issue here. As noted by the Court in Brunner, supra, and Zlatev, supra, and by the Claimant's appraiser in the case at bar, the parking was a matter of practice, and has, to some degree, a quantifiable aspect in the market place. It seems that before the taking two cars could fit within the property lines owned by the Claimant. The parking was within the setback area, and the "spaces" were not of the legal size required. Nonetheless, there was no testimony that any enforcement measures had been brought to eliminate the practice, nor has there been an indication that any enforcement measures have been instituted after the taking. The Court finds that after the taking there is one parking spot within the Claimant's property lines.
Before the taking the property was accessible over the property of others; after the taking the property was accessible over the property of others. The Court credits the testimony of Defendant's engineer [Exhibit "14"], and Defendant's appraiser, as well as the Court's observation of photographs in evidence, that prior to the taking there was a so-called "barrier curb" fronting the Claimant's property, [Exhibits B, C, D, Q], just as there is now after the taking, [Exhibits I, J], making it unlikely that cars approached Claimant's property directly, as asserted by Claimant's expert at trial. The "right of access" Claimant urges was eliminated after the taking is illusory in this Court's view, both factually, given the barrier curb present before the taking, and as a matter of law as well.

While the owner of property abutting a public highway generally has a compensable right of access, it is not absolute.
Raj v State of New York, 124 AD2d 426 (3d Dept. 1986). The issue is whether the taking resulted in a loss of suitable access detracting from the highest and best use of the property. See, e.g., 224 Troup Realty, Inc. v State of New York, 88 AD2d 773 (4th Dept. 1982). In this case, access to the Claimant's property remains essentially as it was. Access has not been rendered "...'remote and circuitous'...." by the taking. cf., Star Plaza, Inc. v State of New York, 79 AD2d 746, 747 (3d Dept. 1980). Accordingly, this is not a compensable item.[5]
In examining the experts' appraisals with regard to improved sales, the Court notes Claimant's expert used a $105.00 per square foot value based on a range of values of a high of $112.00 per square foot to a low of $97.00 per square foot, opining that the sales discussed in his report numbered 1 and 3, were closer in value to the subject's market value given "the subject's size, on-site parking and location on a moderate to heavily traveled road...." [Exhibit 4, Page 88]. He gave the value of the subject property as $210,000 (2,000 square feet x $105.00 per square foot) in the before situation. He discussed the same sales in the portion of his report dealing with the after situation, with different adjustments.

The Defendant's expert gave a value to the subject property as improved in the before situation based upon $110.00 per square foot, based upon a range of values of a high of $120.60 per square foot, to a low of $95.59 per square foot. The same sales were used in the portion of his report discussing the after situation, with no change in adjustments, given his assessment, repeated in his trial testimony, that there was no loss of parking because any parking was within the legal setback area and therefore illegal under the Code.

The Court will disregard Claimant's sales 2 and 3, as excessive adjustments[6]
were applied rendering them not truly comparable to the subject property. The Court will also disregard Defendant's sales F and G, as being too remote in time.[7] Additionally, at trial the Claimant sought consideration of a sale of the property adjoining the subject's some three weeks prior to the trial date, or on or about September 13, 2001. [Exhibit 8]. While the Court appreciates that the subject property may be very similar to the adjacent property, a sale in 2001 is hardly reflective of the fair market value of the subject before and after on the vesting date of September 13, 1994. This sale is simply too remote and, therefore, will be disregarded as well.
The two most comparable sales, in time and in fewer adjustments, are Claimant's sale number 1 and Defendant's sale E. With respect to Claimant's sale number 1, while the Court agrees with some of the adjustments used in the before situation, others are either excessive or unnecessary. The Court finds that the time adjustment is appropriate as is the utility adjustment and the building to land ratio adjustment. The locations of the subject and the comparable properties are equal, therefore no adjustment is warranted since, as noted earlier, in actuality the subject is used by the local community and is not benefitted by its highway location in the before situation. The adjustment for zoning should be 3% negative to the subject. The adjustment for building size should be 2% negative to the subject. Because the availability of parking is significantly better than the subject's with respect to the comparable sale, an adjustment of 10% negative to the subject is warranted. The difference in the condition of the buildings warrants a 3% positive adjustment, as the subject is of a concrete block building and the comparable sale is of wood frame construction. After adjustments, the indicated square foot value for the subject based upon Claimant's sale number 1 is $95.20 per square foot in the before situation.

The Court finds that the adjustments applied in Defendant's sale E should be the same as indicated by Defendant's expert for building to land ratio, for condition (improvements) and for location. As testified to by Defendant's expert, the parking adjustment was based on the subject's having no parking at all. Despite that omission, the Court finds that the parking adjustment should be 12% negative to the subject since there is substantially more parking in the sale E relative to the subject. The greater building size in the comparable sale warrants a 3% positive adjustment, and the zoning adjustment is unwarranted given that both the subject and sale E have mixed zoning. After adjustments, the indicated square foot value for the subject based upon Defendant's sale E is $108.54 per square foot in the before situation.

From these values the Court finds that the indicated square foot value for the subject in the before situation is $102.00 per square foot. The Court finds that the fair market value for the Claimant's property prior to the taking, at its highest and best use as improved, is $204,000.00 (2,000 square feet x $102.00 per square foot).

In analyzing the value of the subject property in the after situation, the Court reiterates that both appraisers agree that the highest and best use for the subject property is as improved. Given the Defendant's posture on parking, no adjustments were made to Sale E to indicate the practical loss of one space as indicated by Defendant's engineer. Sale E in the after situation is otherwise adjusted as in the before situation, with the loss of parking reflected in a 24% negative adjustment. The indicated value per square foot for sale E in the after situation is, therefore, $92.46 per square foot.

Claimant's sale number 1, also adjusted for the loss of parking at 20% negative to the subject, with adjustments applied no differently than in the before situation, indicates a per square foot value of $86.80 per square foot. The court finds that the fair market value of the subject in the after situation is $185,000.00 ( 2,000 square feet x $92.50 per square foot) . As noted earlier, the value of the land of the subject property in the after situation is $14.77 per square foot. The value of the land as vacant of the subject property is, therefore, $41,000.00 (R) (2,794 square feet x $14.77 per square foot).

Accordingly, the total damages found by the Court are as follows: $1000.00 in direct damages for the loss of land; $100.00 for the loss of the asphaltic paving improvement; and $19,000.00 in severance damages, or $20,100.00 total, together with statutory interest thereon from the vesting date of September 13, 1994, to March 13, 1995, and from June 29, 1995 to the date of decision herein and thereafter to the date of entry of judgment for the appropriation.

The award to claimant herein is exclusive of the claim, if any, of persons other than the owners of the appropriated property, their 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.

All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

Let Judgment be entered accordingly.

January 9, 2002
White Plains, New York

Judge of the Court of Claims

[1] See, also, Currie v State of New York, 34 AD2d 1027 (3d Dept 1970) (Reversible error to use appraisal not in evidence, where Claimant had filed two appraisal reports and Court considered the report by one appraiser who did not testify. Purpose of reports "...'to aid and encourage the early disposition and settlement of appropriation claims and to compel a full and complete disclosure so as to enable all parties to more adequately and intelligently prepare for a trial of the issues'....(citation omitted)."
[2]To the same effect, is Metzner v State of New York, 59 Misc 2d 603 (NY Ct. Cl. 1968), where State tried to withdraw one of two appraisals made and filed pursuant to Court rule. State had stipulated to the admission of the report, however, did not examine preparer in depth, relying instead on its other appraisal. Court noted, citing Sullivan, that once filed pursuant to the court rule it was "...'adopted by that party...[who] cannot object to its being received in evidence at least as an admission against interest....'(citation omitted)." Id., at 611.
[3]Quotations are to trial notes or audiotapes unless otherwise noted.
[4]See, also, Fatone v City of Troy, 236 AD2d 676 (3d Dept. 1997)(Construction work within city's right-of-way eliminating parking space and access to multi-unit apartment building not compensable taking); Dumala v State of New York, 72 Misc. 2d 687,691 (NY Ct Cl 1973)(Consequential damages for alleged loss of access and parking space denied where construction of fence, street closing, curb installation "...all species of reasonable regulation of traffic under the state's police power and since suitable access was left, any damage resulting therefrom was non-compensable.")
[5] Regan v Lanze, 40 NY2d 475,482 (1976), cited by both parties for the general statement concerning the "easement of access over the public street...." enjoyed by owners of land abutting a public street, is not pertinent for the same reasons: the legal access remains the same here; the Claimant cannot claim damage because its neighbors' curb cuts have been eliminated. No easement by necessity or other easement is implied in law here, c.f., Miller v Edmore Homes Corp., 309 NY 839 (1955), nor would it create a compensation issue for the State under these circumstances. Finally, the land is not landlocked. See, Palmer v Palmer, 150 NY 139 (1896);Campbell v State of New York, 39 AD2d 615 (3d Dept. 1972).
[6]For Sale 2, before adjustments were 77%; after 117%; For sale 3, before adjustments of 76.3% and after adjustments of 121%.
[7]Sale F was in December, 1989; Sale G was in July, 1990.