RAPP and SHAPIRO v. THE STATE OF NEW YORK, #2003-016-032 , Claim No. 100111
Award totaling $89,300 was made for the permanent partial appropriation and
temporary easement at a gas station, including the loss of curb cuts.
ABRAHAM RAPP and MYRNA SHAPIRO
RAPP and SHAPIRO
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Siegel, Fenchel & Peddy, P.C.By: Saul Fenchel, Esq.
Eliot Spitzer, Attorney GeneralBy: J. Gardner Ryan, Esq., AAG
April 22, 2003
See also (multicaptioned
This is a timely filed claim for the partial taking of real property (reputedly
owned by claimants Abraham Rapp and Myrna Shapiro) and a temporary easement
thereon, pursuant to the Eminent Domain Procedure Law and §30 of the
Highway Law in a proceeding entitled "PIN 0113.33.201 Bayshore-Brookhaven Town
Line, S.H. 5301," as set forth in Map No. 131, parcels 151 and 212 and Map No.
250, Parcel 250 (temporary easement). The appropriation maps and descriptions
contained therein are adopted by the Court and incorporated herein by reference.
Title vested in the State of New York on May 7, 1999, and an amended claim was
filed on June 8, 1999. The Court has viewed the property which is the subject
of the claim.
The partial taking and temporary easement, which were part of a highway
widening project, involved a gas station located in the Town of Islip, Suffolk
The Rapp-Shapiro property is situated in the business district of the
of Bayshore, on the north side of East Main Street,
which is a stretch of Montauk Highway (Route 27A). The property is bounded on
the west by Montgomery Avenue and the east by Fordham Place - - it has three
street frontages. The land is a slightly irregular rectangle (Fordham Place
meets Montauk Highway a little off the perpendicular [cl exh 7]), which, before
the taking, was 14,700 square feet, about a third of an acre (cl exh
The State's appropriation consisted of 254 square feet in two pieces: 230
square feet along the gas station's southwest corner (Montauk Highway and
Montgomery Avenue) and 24 feet from the southeast corner of the property,
Montauk and Fordham Place. In addition, a temporary easement of 543 square feet
along the Montauk Highway frontage was effected for the purposes of grading (cl
exh 8, p 72; def
exh A, p 98).
Montauk Highway, which is not divided, is a two-way thoroughfare, as is
Montgomery Avenue; there has been a traffic signal at their intersection at all
relevant times. Fordham Place to the north of the gas station leads to a dead
end; it is two way, and traffic going south onto Montauk Highway is controlled
by a stop sign (def exh A, p 24). The undisputed highest and best use of this
site, before and after the taking, is the dispensing of gasoline.
Before the taking, each of the three streets fronting the gas station had two
curb cuts for access. What the taking at the two corners of Montauk Highway did
was directly eliminate the western curb cut on the Highway and effectively
eliminate the southern cut on Montgomery Avenue. The reduction of the six curb
cuts to four, especially the one fronting on Montauk Highway, gives rise to the
core of the dispute between the parties.
Defendant contends that there is no recovery for consequential damages arising
from the reduction in the number of cuts because such goes to a reduction in
access, citing among other cases, LaBriola v State of New York
, 36 NY2d
328, 368 NYS2d 147
(1975); Priestly v State of New York
, 23 NY2d
152, 295 NYS2d 659 (1968); Bopp v State of New York
, 19 NY2d 368, 280
NYS2d 135 (1967); Landsman v State of New York
, 249 AD2d 822, 671 NYS2d
868 (3d Dept 1998), appeal dismissed in part and lv denied in part
NY2d 943, 681 NYS2d 471 (1998); and Rider v State of New York
, 192 AD2d
983, 596 NYS2d 900 (3d Dept 1993).
Consequential damages are in order
if the effect on access changes what is the property's highest and best use. As
the Third Department explained, "Interference with access making entree more
difficult may be compensable if access is not only more circuitous or
inconvenient but unsuitable
, i.e., ‘inadequate to the access needs
inherent in the highest and best use of the property involved' [citing
]." Rider, supra
, 192 AD2d at 985, 596 NYS2d
But what the curb cuts in actuality impact upon here is not access, but
utility, the way in which the vehicles can utilize the pumps within the station.
Mobil Oil Corp v State of New York
. Ct Cl 1995, Rossetti, J.
(unreported, claim no. 79808). The parties' appraisers recognized the effect on
utility of the loss of the curb cuts, and each assigned it an
Claimants' appraiser Ronald Haberman
analyzed the value of the property using market sales and the income
capitalization approach; he did not use the cost approach. The result from the
two methods diverged by about 15% (def exh 8, p
Defendant's appraiser Andrew Albro dealt
with all three methods of valuation. Mr. Albro's valuations using the income
and sales approaches were only 1% apart for this property; the cost approach
varied about 14-15% from the other two methods (def exh A, p
Mr. Haberman's report stated that the clearest valuation technique for
commercial properties is the income approach, but in the subject appraisal, "the
validity of market sales is high with fewer adjustments necessary" (cl exh 8, p
55). He did not select the latter, but gave it slightly more weight in an
average of the two, perhaps to take advantage of the aforementioned 15%
The Albro Report suggests that in this case the market sales method is
preferable; it has an "adequate quantity and quality of market data ... however,
providing a relatively narrow and persuasive range of value indicators." As to
the income capitalization method, defendant's appraiser thought that in this
case "the quality and quantity of data is somewhat less than desired," although
useful as a valuation check - - which it was here differing by only 1% from the
valuation yielded using market sales. The cost approach has some advantages,
but according to Albro, its drawbacks included the "difficulty in accurately
estimating accrued depreciation..." (def exh A, p 67).
Furthermore, and in consideration of the material in the appraisers' reports
underlying the various valuations, market sales appears to be a better fit with
issue involving the two lost curb cuts and its effect on utility. In view of
the foregoing, the market sales approach will be utilized herein.
Haberman examined six properties that were sold between 1996 and 1999 and
Albro looked at four that were sold between 1997 and 1999. Each of the
properties is a gas station of one variant or another. Two of the properties
are included in both reports - - one on Route 109 in Lindenhurst and one on
Route 112 in Medford.
The subject station is relatively small, only a third of an acre. Both before
and after the taking, it is just large enough to dispense gas; there is no
convenience store or bays for servicing vehicles. The station does have a
256-square foot kiosk for payment and the sale of ancillary items such as
antifreeze and motor oil. The most comparable gas station to the subject
property is another small, gas-dispensing only, main-street situated property -
- namely, the one at 25 Main Street in Patchogue, which was included in
Haberman's market sales (id.
exh 8, pp. 47, 65 and 93-94). The
Patchogue property is only 8,712 square feet and sold on August 26, 1998 for
$330,000 or $37.88 per square foot.
In order to compare the Patchogue station to the Rapp-Shapiro property,
claimants' appraiser made certain adjustments using five parameters: the effect
of the time between the sale of the Patchogue property and the State's taking of
the subject property; location; size; age/condition; and features, which
I find Haberman's application of these factors to be reasonable. He obtained a
composite adjustment factor of 1.14, meaning that
the $37.88 square foot sales price for the Patchogue station is increased by 14%
to $43.22 for the subject property. In other words, the same
market that valued the Patchogue gas station at $37.88 per square foot would,
eight months later, value the subject property at $43.22 a square foot. With
14,700 square feet, the property had a valuation before taking of $635,000
[14,700 times $43.22].
There are five pump islands on the subject station including the one attached
to the kiosk. One is closest to Montauk Highway and the next one closest to it
is the kiosk pump island which is slightly west of center on the property.
These two pump islands are sheltered by a canopy. The other three pump islands
are north of the kiosk. (See cl exhs 3-5).
The Haberman Report states that before the taking, there were two distinct and
efficient traffic patterns, one for vehicles using the southern two pump
islands, the other for those using the northern three pump islands. Haberman
called the result of the taking on traffic flow dramatic. Claimants' engineer
Steven Schneider concluded that the utility of the site had been impaired
tremendously. According to Mr. Schneider and defendant's engineer, Bruce Savik,
the general effect of the lost curb cuts is that motorists using the southerly
pump island along Montauk Highway now will use the corridor between the kiosk
and the Montgomery Avenue or west frontage. (See Schneider's traffic flow
diagrams, cl exh 4).
The Haberman Report stated:
[T]he most valuable pump islands on the site are those under the canopy and
closest to Montauk Highway... [After the taking], westbound traffic along
Montauk Highway...cannot now exit swiftly and safely as they did [before the
taking]. They must now proceed around the attendant's booth along the
property's west side and exit via the only remaining north cut along Montgomery
Avenue, or proceed through and across the site and exit via Fordham Place. These
vehicles conflict with the north traffic flow through the site and with those
vehicles accessing the north three pump islands. These conflicts create unsafe
situations and cueing problems through the site and at the remaining Montgomery
See cl exh 8, pp 57-58. See also the Report of claimants'
engineer (cl exh 1, pp 7-8).
Mr. Savik described a number of options for the motorist in his testimony; for
example: "The loss of one curb cut on Montauk Highway is more severe in that
cars entering from Montauk Highway would have to make a ‘U' turn to exit
the site or exit the site from ...Montgomery Avenue or Fordham Place" (def exh
B, p 7).
After the taking, Haberman adjusted only the parameter on features/utility,
lowering the value by 25% for the difficult movement of the vehicles.
Defendant's appraiser Albro
termed the gas station, after the taking, as at a "slight disadvantage" because
of the lost curb cuts, worth a 10% adjustment (def exh A, p 91).
Claimants' engineer pointed out that the size of this gas station was "very
small... gas stations are typically much larger, two to three times the
size...of this one."
This was an intensively developed station on the main street of the business
district. There were points of conflict in the movement of vehicles before the
taking as well as after; I do not therefore adopt Haberman's pre-taking
description of the flow within the station as swift and efficient.
The station owned by Mr. Rapp and Ms. Shapiro has three frontages and a traffic
light at Montgomery and Montauk which eases the use of Montgomery Avenue. From
, the lost curb cut on Montauk Highway seems quite close to the intersection,
which might have made it difficult for drivers to rejoin westbound traffic on
Montauk Highway (see, e.g.
, cl exhs 4 & 5). Drivers might actually
prefer to exit on the quieter Montgomery Avenue or perhaps do so in hopes of
making the traffic signal.
The large portion of claimants' testimony about Montauk Highway relates to its
westbound traffic. On that note, Schneider stated that for eastbound traffic,
before the taking, a left turn sign could have been put just past the light.
Nothing was adduced to show that this satisfies the Manual on Uniform Traffic
Control Devices (17 NYCRR §200
) or is otherwise well-founded. Schneider in his schematic showing
car movements to the pump island nearest Montauk Highway does show the path of
an eastbound car (cl exh 4). But inasmuch as, in both the before and after
situations, he has the eastbound car making a left turn onto Montgomery Avenue,
using the pumps north of the kiosk does not appear so
No statistics were presented on the usage of the different islands and the
movement of traffic. Mr. Schneider said he visited the site a
"few times" after the taking, "but I did not have to stay for a very long period
of time." An elaboration of material in claimants' exhibit 8 on Southside
Hospital is submitted by them in their brief (p 13); it supports the utility of
the Montgomery Avenue access:
The property is located immediately across the street from Southside Hospital, a
439 bed facility, with over 1,400 employees. Southside Hospital also happens to
be part of the North Shore-Long Island Jewish Health System, the largest
non-government employer on Long Island...Southside Hospital, as a 24 hour
facility, obviously attracts heavy street traffic.
This is a valuable gas station, of a unique size and a large number of pump
islands for that size. Its size and arrangement is lawful, but nonconforming.
Town zoning requires gas stations to be at least 40,000 square feet, which, in a
downtown described as quite active (cl exh 8, p 25), gives the property a
competitive advantage. The gas station was always intensively utilized, and
movement throughout the property would never have been without points of
conflict. Moreover, in that downtown area across Montgomery Avenue from the
hospital with its 1,400 employees, I credit Savik's testimony that,
"Typically, the user knows the station, so he's going to pick which way he's
In sum, for this kind of property, to conclude that losing two of six curb
cuts, with one of the two on the highway, reduces it value by 25% as claimants
maintain, is not supported by the evidence; what is commensurate with the
evidence is an adjustment of 10%. That would reduce the $43.22 square foot
value determined above to $38.90. The taking reduced the property by 254 square
feet, leaving 14,446 square feet. The direct damages are therefore $11,000 (254
square feet times $43.22). Consequential damages amount to $62,000 (14,446
square feet times the difference between $43.22 and $38.90).
I concur with the analysis contained in claimants' Appraisal Report (pp 72
as to the damages for the easement, totaling 543 sq feet along the Montauk
Highway frontage. Using the two-year period and 10.5% discount rate that
Haberman does, but with a $43.22 per square foot value, the resulting damages
are $4,900. In addition, during the construction, which was completed in less
than the two years of the temporary easement, trucks and heavy equipment
affected the normal operations of the gas station, resulting in severance
damages. Defendant offers no income figures to challenge those on page 74 of
the Haberman Report that the before-taking annual income of $63,000 should be
reduced by 20% or $12,600, which figure becomes $11,900 when discounted by the
Therefore, it is the finding of the Court that claimants are entitled to an
award of $73,000 with statutory interest thereon from the vesting date of May 7,
1999 to the date of decision herein and thereafter to the date of entry of
judgment for the permanent appropriation; and $16,800 with statutory interest
thereon from the vesting date of May 7, 1999 to the date of decision herein and
thereafter to the date of entry of judgment as the total award for the temporary
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.
All motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
April 22, 2003
HON. ALAN C. MARIN
Judge of the Court of Claims
Defendant's engineer (def exh B, p 1) and
appraiser (def exh A, p 4) had the pre-taking size of the property as 14,659
square feet, but defendant's post-trial brief uses 14,700 square feet.
Divergences here and for defendant's
valuations are calculated as a percentage of the lesser of the two
Five- and six-digit figures are rounded-off
to the nearest thousand; those of four digits are rounded to the nearest