New York State Court of Claims

New York State Court of Claims

GOUVIS v. THE STATE OF NEW YORK, #2003-030-005, Claim No. 96622


Synopsis


Claimant awarded $19,000.00 direct damages and $84,000.00 severance damages for partial appropriation. No change in highest and best use from commercial to residential as asserted by Claimant. Lack of access to Route 25A did not change the type of commercial business allowable to the before and after situation

Case Information

UID:
2003-030-005
Claimant(s):
DEMETRIOS GOUVIS
Claimant short name:
GOUVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96622
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
SANTEMMA & DEUTSCH BY: JON N. SANTEMMA, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ROSE F. LOWE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
March 21, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
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 2B S.H. 8111", the property being located in Suffolk County, as reflected in Map No. 40, Parcel No. 51. [Exhibit 1]. The record establishes that vesting occurred on July 24, 1994. The Claim was served on the Office of the Attorney General [Exhibit 2], and filed in the Court of Claims on July 18, 1997. [Exhibit 3]. Claimant's title to the subject property is not disputed. The property was acquired on December 15, 1989 for a purchase price of $325,000.00 by Deed recorded in Liber 11021 at Page 311. The property is designated on the Suffolk County tax map as District 200, Section 79, Block 3, Lots 12.1, 12.2 and 13. The appropriation maps and descriptions contained therein are adopted by the Court and incorporated herein by reference. [Exhibit 1]. The Court has made the required viewing of the property which is the subject of this claim.

To this Court's knowledge, this claim has not been assigned or submitted to any other court, tribunal or officer for audit or determination.
DESCRIPTION
The property is located on the northwest corner of Route 25A and Ridge Road in Shoreham, Town of Brookhaven, Suffolk County, New York. Prior to the taking it consisted of an irregular, trapezoid shaped parcel, 46,075 sq. ft. in size, with approximately 352 feet of frontage on Route 25A along its southerly side, 340 feet of frontage on North Country Road along its northerly side, and 194 feet on Ridge Road along its easterly side. The westerly side of the property - and the narrowest portion at approximately 79 feet - was bordered by property owned by the Town of Brookhaven. The property is improved with two one-story frame buildings in poor condition. [Exhibit 4B]. The building on the west is approximately 550 sq. ft. The building on the east is approximately 640 sq. ft. They were used as branches of a bank and a local real estate office in the past. It is conceded that the buildings should be demolished, so all valuations were performed with the thought that the property should be valued as vacant land.

The property is zoned J-4 business under the Town of Brookhaven Zoning Code (hereafter Code). Uses in that zone include professional and business office uses on lots that have a minimum of 9,000 sq. ft., as well as the residential uses allowed by the B-residence zone. [
See, Exhibit "D", Pages 12-15]. The B-residence zone allows administrative, financial, business and professional offices, art galleries, exhibit halls, and artists' and dancing studios among others. [Id]. The Code requires a front yard setback in the J-4 business zone of 40 feet, and provides that corner and "through"[1] lots - the latter term referring to lots that go through from one road to another road - have two front yards. The Code allows one parking space per each 150 sq. ft. of office area, but no parking is allowed in front yard space.
The partial taking consisted of a roughly triangular shaped parcel of 2,223 sq. ft. at the northwest corner of the property, as part of an overall project to create a bypass to Route 25A. Before the taking, and the realignment of Route 25A, curb cuts from the two buildings on Claimant's property were carved directly to Route 25A. [Exhibit A]. Claimant's southernmost property line was directly on Route 25A. [Exhibits 4A, A]. After the realignment, the State created a buffer zone between Claimant's property and new Route 25A, with no curb cuts across to Claimant's property from Route 25A. [Exhibit P]. On the western side, the property now abuts Woodville Road. Its alignment with North Country Road is unchanged. On the east, the property abuts Ridge Road - which runs generally north/south from Route 25A to North Country Road - both in the before and after situation. Ridge Road, however, in the after situation, has not been improved on the Route 25A side. [Exhibits 11A, 11B, 11C, P]. On the North Country Road side, it has been paved only a short distance in, and then blocked with a small wall and shrubbery. [Exhibits 8A, 8B, P]. The driveway to a single family residence abutting the south side of North Country Road runs directly to the west from this blocked off portion of Ridge Road.
HIGHEST AND BEST USE
Both appraisers concluded that the highest and best use for the subject property before the taking would be its use as a lot allowing professional or other office space to be built. Whether the highest and best use remained the same after the taking is the major dispute, together with the complementary consideration of whether an award for severance damages resulting from the alleged loss of access, can be made.

"Highest and best use" is generally defined as "...[the] use of vacant land or an improved property 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, Page 305 (12th Ed. 2001)]. A party asserting a change in the highest and best use from the one existing at the taking has the burden of proving "...'that it is reasonably probable that the asserted highest and best use could or would have been made of the subject property in the near future...' (citations omitted)." Thompson v Erie County Indus. Dev. Agency, 251AD2d 1026, 1027 (4th Dept. 1998).
Claimant's expert appraiser, Theodore J. Powers, described the property before the taking - inaccurately as the evidence established - as a "corner" lot on the northeast corner of North Country Road and Route 25A. [Exhibit 6]. These roads are described as the "heaviest traveled east/west arterial roads along the north shore of Long Island in Shoreham."
[Id]. Apparently upon instruction from counsel, Claimant's expert appraiser made two assessments of highest and best use, and valuation after the taking, based upon whether the subject site was with or without access to Route 25A. After the taking, assuming the subject property no longer had access to Route 25A, Claimant's appraiser found that the commercial use was "destroyed", and the highest and best use of the property was changed to a residential use, allowing a single family home under the A-residence zone. [Id].
Based upon the testimony and reports furnished, the terms "with access" and "without access" were used rather loosely by all concerned. At times, the words without access were used colloquially, as if to say there is not now a direct connection between the road and the property because there is a curb present. At other times the term is used more specifically to mean without "legal" access, that is without whatever access might be provided by a curb cut approved by whichever entity - including the New York State Department of Transportation (hereafter DOT) - would have the right to decline or grant permission for a means of ingress and/or egress.

When the State takes property for highway purposes without indicating on the appropriation map[2]
or elsewhere that the taking is "without access", the law provides that the condemnee has the legal right of access to the highway system over the appropriated portion. See, Serf Realty Company v State of New York, Claim No. 99004, Motion No. M-60252 (Waldon, J., May 31, 2002). It is nonetheless apparent from the testimony of both parties' experts that direct access - physical or legal - to the new Route 25A bypass from Claimant's property is fairly unlikely, given the present configuration of the highway.
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). When the effect of "...a taking is to make access to the property merely circuitous, but nevertheless adequate for the pretaking highest and best use, an award of consequential damages will not be sustained. However, if it is shown that the taking rendered the access unsuitable in addition to circuitous, compensability follows (Priestly v State, 23 NY2d 152; Baan v State, 75 AD2d 919). Suitability of access is directly related to the highest and best use of the property, and when the highest and best use is changed as a result of the remaining access, the damage is compensable." Weinstein v State of New York, Claim Number 64786 (unreported decision, September 29, 1982, Silverman, J.).
Thus in
Weinstein v State of New York, supra, the Court found that the taking at issue changed the highest and best use from a commercial one requiring a high traffic volume, to a residential one allowing construction of a two-family dwelling. The Court then concluded that the loss of direct access from Sunrise Highway - the major road at issue there - was compensable.
In this case, however, access has not been rendered remote and circuitous by the taking.
C.f., Weinstein v State of New York, supra; Star Plaza, Inc. v State of New York, 79 AD2d 746, 747 (3d Dept 1980).
As noted, the southerly border of Claimant's property no longer abuts Route 25A and is buffered by a piece of property owned by the State some 50 to 75 feet deep - over which old Route 25A used to run - that is planted with shrubbery and trees. [Exhibits 9, 10, 11C, P]. The realigned, Route 25A bypass going west, shortly after it runs along the first part of the buffer along Claimant's property, begins to widen from two lanes to four, eliminating the shoulder next to Claimant's property. [Exhibits 7D, 9, P]. At a traffic signal at the intersection of Woodville Road and the Route 25A bypass, the two right lanes closest to Claimant's property become turning lanes for access to Woodville Road and old Route 25A. From the right lane closest to Claimant's property, one turns onto Woodville Road, and can continue bearing right onto North Country Road along the northernmost part of Claimant's property. [Exhibits 7E, 9, P]. The right turn lane closer to the center of new Route 25A gives access to old Route 25A. [Exhibits 7C, 7D, 7F, 9, P]. Two travel lanes continue westward on the Route 25A bypass. There is a median along Route 25A, as it runs adjacent to claimant's property, except for the break at Woodville Road.

Approaching the intersection of Woodville Road and the Route 25A bypass traveling east on the Route 25A bypass, the same traffic signals allow a left-hand turn onto Woodville Road. [Exhibits 7H, 9, P]. The driver may then bear right onto North Country Road along the northernmost part of Claimant's property, just as in the approach traveling west.

David J. Portman, Claimant's planning expert, testified that no curb cuts would be granted in the after situation from Route 25A, across the State buffer to the Claimant's property. [
See, Exhibit 5]. He said the State wouldn't allow a curb cut near the existing roadways - even if the roadway was a "paper street"[3] like Ridge Road to the east. As a "paper street", with no intersection with, or access to, Route 25A, Ridge Road would not provide access to the property. Further blocking Ridge Road's use as access, 15 feet to the west of the Ridge Road right of way on the northerly side of Route 25A, the State had placed a light pole. Approximately 15 feet further to the west is where Route 25A widens for the two turning lanes.
Prior to the taking, Mr. Portman thought the property would have been attractive for development with a professional office building of approximately 10,000 square feet, with 70 to 80 off-street parking spaces. After the taking, without direct frontage on Route 25A - a "major commercial highway"- the subject property's only real access is to North Country Road, which Mr. Portman describes as "essentially a single-family residential street between Woodville Road on the west and Randall Road on the east. There are two single-family residences across North Country Road from the subject property and one immediately across Ridge Road to the east....The only exception to the single-family residential pattern along North Country Road is a building called ‘North Country Professional Offices,' a small, older, wood frame professional office building located at the northwest corner of the intersection of North Country Road and Briarcliff Road (Randall Road). Continuing further to the northeast on North Country Road, the pattern of land use is entirely low density, single-family residential." [Exhibit 5, Page 6].

For comparison purposes, Mr. Portman had described in his report another piece of property to the east of the subject along Route 25A, called Maple Commons Professional Center, that had been developed with a one-story frame professional office complex. [Exhibit 5, Page 4]. Describing it as having "excellent access" to Route 25A - because it has access from its east and west property lines from signalized intersections and through streets - the Court nonetheless notes that this property also does not have direct access onto Route 25A. The witness could not really compare the subject and this property because he had not examined any site plan for the developed property, did not testify as to its actual dimensions, nor had he done any other independent investigation except to view it.

Reviewing Mr. Portman's testimony and report, several other notable errors lessen its weight. He inaccurately describes the subject property in the before situation as being a corner lot, ending at its northeastern end at the "Y" intersection of North Country Road and Route 25A. As can be seen from the aerial photograph and the taking map this is simply not the case. [
See, Exhibits 1, A]. Property owned by the Town of Brookhaven bordered that intersection in the before situation, and was some 200 feet deep east to west. Woodville Road in the before and after situations extends across Route 25A to North Country Road abutting Claimant's property. In the after situation, it is clearly improved by additional paving. Mr. Portman did not discuss any possible access from Woodville Road onto Claimant's property. He did not discuss what kind of properties lay to the west on North Country Road, nor does his report address the property to the west.
His calculation of building size and the amount of parking available in the before situation seems exaggerated, given a review of the Code provisions [
See, Exhibits Q-1 through Q-4], and he gave no indication of what type of professional building could be built in the after situation, as he appeared wedded to this notion that only a residential use would be appropriate. He did not seem to be aware that the J-4 zone included residential uses. He incorrectly described the property as having had 365 feet of frontage on Route 25A in the before situation. He had never consulted with the DOT regarding curb cuts.
Theodore J. Powers, Claimant's real estate appraiser, conducted his appraisal in the after situation in two ways. [
See, Exhibit 6]. First, as if the property were with access and continued with a commercial use; and second as if the property were without access to Route 25A and with a residential use. Assuming the first version, he made no adjustments to the per square foot value of the property except a slight one for marketability, and used the same sales as in the before situation. Considering only residential sales in the after situation, he did not weigh sales of other commercial properties at all in the after situation as if there was no access to Route 25A.
Thomas W. Cramer, Defendant's rebuttal expert with respect to Mr. Portman's report, testified and submitted his report as well. [
See, Exhibit O]. Mr. Cramer, a former Town of Brookhaven Commissioner of the Department of Planning, Environment and Development, who had also held various planning posts for Brookhaven since 1975, testified that since 1994 he personally had prepared two or three site plans for the development of properties along Route 25A, and had been part of the team preparing such plans on ten or more sites. In connection with his work on zoning studies for the town, as part of an overall land use plan, numerous areas were rezoned, including the subject parcel, in 1984. He noted that the J-4 business zone was envisioned as "transitional" zoning, to act as a transition from residential to more intense commercial uses such as those allowed in a J-2 business zone. While a property in a J-2 business zone could be developed with a fast food restaurant, a property in a J-4 business zone could not.
It was his opinion that after the taking, the highest and best use continued to be for development with a professional office building. Based on his experience, he thought that a curb cut allowing a right turn in from Route 25A at the southeast corner of Claimant's property could be provided, or access via an improved Ridge Road, as well as ready access from North Country Road. He disagreed with Mr. Portman's view that North Country Road is a small and unimportant east/west route. He noted that while it is not as commercially developed, the road is nonetheless a main route for the area, acting as a collector road for the Village of Shoreham and other municipalities to the north of Route 25A, particularly the Rocky Point business area. The visibility of any building on the lot continued to be good from all roadways. Most importantly, the "spontaneous" type of access that might be required of a lot to be developed as a fast food chain, for example, is not an integral part of the highest and best use for a J-4 zone.

The witness' view of what size building might have been built on the subject before and after the taking, as well as the number of parking spots allowable, differed from that of Mr. Portman.[4]
He could not find a basis for Mr. Portman's conclusion that a 10,000 to 12,000 sq. ft. building, with 70 to 80 parking spaces could ever have been built, given the limitations on such a yield imposed by Suffolk County Department of Health Services' (SCDHS) sewage flow rates, zoning set backs, and parking requirements. Mr. Cramer credibly pointed out that even a building of the size proposed in the before situation by Mr. Portman would only yield between 53 and 64 spaces. Set back requirements for a property containing a road on three sides such as the subject in the before would mean 40 foot front yard set backs on three sides: considerably reducing the amount of buildable area. In the before situation, the area for parking and a building was approximately 14,500 sq. ft. After the taking the buildable area was reduced by 950 sq. ft. He noted that a building and parking of the size proposed by Mr. Portman would require a minimum of 29,500 square feet of buildable area. It was Mr. Cramer's view that both in the before and after situation a building of from 3,500 to 4,500 square feet could be built, with the required parking of 20 to 25 spaces.
He also noted in his report, and in his testimony, other means by which additional building footage might be possible. If the portion of Ridge Road that is not open were abandoned, rather than the 40 foot set back requirement for a front yard, a 25 foot set back requirement could be used, together with the 25 feet of right of way added to the subject sight, would make the set back lie at the existing property line. He also proposed the option of variances from the required setbacks from Ridge Road and/or Route 25A. He opined that on the Ridge Road side the likelihood of a variance from the front yard setback was good since it is not open for the most part. On the Route 25A side, the likelihood of a variance was also good because the travel lanes of Route 25A are setback beyond that 40 foot front yard setback anyway. Mr. Cramer acknowledged on cross-examination that a curb cut along the Woodville Road side of Claimant's property was unlikely, since the road is a turning lane the entire time it bears along the westerly side of the property onto North Country Road. [
See, Exhibit 7E]. He, too, had not consulted with the DOT to ascertain the real likelihood of direct access from Route 25A.
Neither Mr. Portman, nor Mr. Cramer, entirely convinced the Court of the validity of their more "extreme" positions. Mr. Portman's conclusion that the utility of the site was so completely compromised by lack of direct physical access to Route 25A is not persuasive. However, Mr. Cramer's pronouncement that a curb cut would be allowed - although it was based upon his earlier experience with a site along Route 25A that had been granted a direct curb cut - was similarly speculative. No evidence of any relevant permit requirements was presented from either side.[5]

Nonetheless, after carefully considering the bases for the opinions of the respective experts, the Court finds that the most internally consistent version of the subject parcel's potential is that described by the State's expert, Thomas W. Cramer. Unlike the situation in
Weinstein v State of New York, supra, where the preexisting commercial use was further qualified as one requiring a high volume of traffic and direct access from the high traffic route in order to optimize its location, the parcel here retains the same benefits it had prior to the taking relevant to its use as a location for a professional office building or other less intensive commercial development. Its location between two busy roads in the before and in the after situation, does not render it appropriate for the kind of residential development suggested by Claimant's experts.
Based upon the foregoing, and the Court's own observation of the subject, the highest and best use after the taking continues to be as a commercial parcel, with the uses allowable in a J-4 business zone. This is not a landlocked parcel, but one that continues to be easily accessible from North Country Road, and may well be accessible from other routes.
C.f., Pollak v State of New York, 50 AD2d 201 (3d Dept 1975), lv denied 38 NY2d 985, (1976), aff'd 41 NY2d 909 (1977); Wolfe v State of New York, 22 NY2d 292 (1968). While the Court finds that the physical and legal access to Route 25A has been lost, the parcel's highest and best use has simply not changed.
VALUATION
Just before the close of Claimant's case, the State indicated it did not intend to introduce the testimony of its own appraiser, Patrick A. Given, and would "adopt" the $65,000.00 damages figure contained in Mr. Powers' appraisal of the property as having a commercial use with access in the after situation. The Court then granted Claimant's application to introduce Mr. Given's report as an admission against interest.[6]
[Exhibit 14]. In his post-trial memorandum counsel for Claimant argues that he proffered the report "on the issue of lack of access to Route 25A after the taking, and on the absence of any information for cost of cure, not for the purposes of value." [Claimant's Post-Trial Memorandum of Law, Page 6]. Characterization of this piece of evidence in this fashion unduly limits the reasons the appraisal was admitted into evidence by this Court. Indeed, at the time the Court noted it would give it whatever weight it thought fit. The Court does, however, agree that the operative term is that the admission be against interest. Thus, where the State's expert appraisal does not contain facts against its interest - such as the values expressed for the property in the before situation - the report is discarded given the State's choice not to present its witness.
Each appraiser relied primarily on the sales comparison approach to value to discuss the value of the subject property in the before and after situation in his report. At trial, Claimant's appraiser also relied exclusively on the sales comparison approach to value. Accordingly, the Court has relied primarily on the sales comparison approach to value of the land as the best indication of value.
Before the Taking
Claimant's appraiser found a value of $410,000 for the subject property prior to the taking, predicated on sales of property he found comparable, and after a $5,000 cost of demolition of the buildings on the site. The State's appraiser found a value of $390,000 prior to the taking after the same deduction. Only the Claimant's appraiser's comparable sales will be considered in the before context.

While none of the sales used possess the same zoning as the subject, and are all substantially smaller, most are not so different from the subject that they should not be considered. No adjustments were made for time although the sales compared range in date from March 20, 1992 to November 29, 1994. The Court agrees that no adjustment is required for time given the relative proximity, and the attested lack of change in market factors over that period.

While it sold as vacant land on March 20, 1992, Sale number 1 was subsequently improved with a one-story building. The price per square foot indicated before any adjustments is $9.35. Mr. Powers could not say whether it had been sold with site plan approvals, making it more valuable than the subject parcel. The J-2 Zoning of the parcel was viewed as better than the subject, warranting a negative adjustment of 5%. Negative adjustments of 5% for location, and 10% for size were also applied. A 20% positive adjustment - given the subject's superior frontage - was also applied. The Court finds that the size adjustment should be more in the 15% range, given that the subject is more than three times the size of the comparable, and the appraiser's notation that generally the smaller the parcel, the higher the per square foot figure used. The adjusted price per square foot for this comparable should be $8.88 per square foot [($9.35 x .95= $8.88)].

Sale number 2 has too many adjustments and is discarded as not comparable. It is too small a parcel, and the zoning indicated (J-3) was not even discussed by the witnesses, thus the Court has no basis of comparison.

Sale number 3 has not been adjusted sufficiently for size and should bear a 15% negative adjustment to the subject property. As with Sale number 1, the subject is more than three times the size of Sale number 3. It was brought out on cross-examination - though it was not conceded by the witness - that this sale may have been part of an assemblage of two lots sold concurrently. [
See, Exhibits G-1,G-2]. Certainly, the two deeds offered by the State suggest that the sales were so orchestrated. Additionally, Mr. Powers - who apparently relies on a database maintained by the State called "Sales Web" that contains information provided by grantees as to real property sales - could not confirm that the indication on the Sales Web sales report for this property that it was not an arm's length transaction had ever been investigated. It was also an estate sale, which frequently may mean that the sale price was lower. Given these competing considerations, the adjustments suggested by Mr. Powers are nonetheless sustained except as to the size adjustment. The adjusted price per square foot for this property should be $7.68. [(8.53 x .90= $7.68)].
Finally, the subject parcel is more than six times the size of Sale number 4. Given that difference, a 25% negative adjustment should be applied. The other adjustments used by Claimant's appraiser appear warranted given the differences in zoning, and the subject's superior frontage. The adjusted price per square foot of Sale number 4 is $9.60. [(10.67 x .90= $9.60)].

Based on the foregoing, the Court finds that the subject property in the before situation has an indicated per square foot value within the range of values presented after adjustment of the comparable sales in the amount of $8.70 sq. ft. (rounded). The Court finds that the fair market value of the subject parcel, after deduction for the cost of demolition, at its highest and best use as commercial property suitable for professional office space, is $396,000.00 (rd) (46,075 sq. ft. x $8.70 per sq. ft. = $400,852.50 less demolition $5,000.00 = $395,852.50). Thus direct damages for the taking are in the amount of $19,000.00 (rd) (2,223 sq. ft. x $8.70 = $19,340.00).
After the taking
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).
Claimant's counsel argues in his post-trial brief, that the only evidence of after value is contained in Claimant's appraisal. The State made the choice to not present the testimony of its expert appraiser, and to "adopt" the $63,850.00 figure given as damages by Claimant's appraiser when he considered the property as
retaining access to Route 25A (severance damages of $43,850.00 and direct damages of $20,000). In contrast, the State's appraiser, assuming the highest and best use was the same in the before and after situation, and also assuming that there was no access to Route 25A and Ridge Road, found severance damages in the amount of $59,000 and total damages of $78,000. The utility of the State's appraisal - since any "admission" that the severance damage is higher is not directly related to the evidence it purportedly contradicts - is limited to the fact of the appraiser's indication that access to Route 25A has been eliminated. The cost of cure aspects appear a nullity since neither party presented substantiating information concerning cost.
There are analogous problems with the utility of Claimant's appraisal. As has been noted, the Court has found that the highest and best use of the subject property in the before and after situation is the same. Because Claimant's appraiser did not even address the commercial use in the after situation with regard to the lack of access to Route 25A, the only comparable sales available for the Court's consideration are those Claimant presented in the before situation. By definition, the residential sales addressed in the Claimant's appraiser's report are not comparable[7]
and, in this Court's view, no amount of adjustment for the difference in zoning will make them comparable. Notably, in the narrative portion of his appraisal of the after taking situation, Mr. Powers indicates as to the location adjustment to the residential sales comparables: "[t]he subject is situated on a busy primary arterial highway. This is not conducive to residential use. The appraisers have made a downward adjustment for this factor." [Exhibit 6, Page 57]. Using residential sales only, the claimant's appraiser found that the subject property contained one buildable lot with a value of $40,000.00, less demolition, to yield $35,000.00 in the after situation. [Exhibit 6, Page 58]. The sales analyzed are all located in A-1 zoning districts and are all, except for sale 2, part of subdivisions. There is simply no comparison.
In keeping with the Court's finding that the lack of access to Route 25A did not destroy the use, the Court has only considered the comparable commercial sales Claimant presented in the before situation as the most useful to establish, after certain adjustments, the fair market value of the property in the after situation.

Just as in the before situation, Sale number 2 is discarded as not being comparable.

Sale number 1, warrants negative adjustments of 5% for location, 15% for size, 5% for zoning, and no adjustment based on the subject property's now reduced frontage situation. In the before, the subject had frontage on two busy streets, now it has frontage on only one. The adjusted price per square foot indicated for this parcel is $7.01. ($9.35 x .75 = $7.01).

Sale number 3, warrants negative adjustments of 15% for size, 10 % for topography, 5% for zoning, and no adjustment based upon the subject property's now reduced frontage situation. The subject, as does this comparable sale, has frontage on one busy street. The adjusted price per square foot indicated for this parcel is $5.97. ($8.53 x .70= $5.97).

Sale number 4 warrants negative adjustments of 25% for location, and 5% for zoning. No adjustment based upon the subject property's now equivalent frontage situation is made. Both the subject and the comparable have frontage on one relatively busy street. The adjusted price per square foot indicated for this parcel is $7.47. ($10.67 x .70 = $7.47).

From these values the Court finds that the indicated square foot value of the subject in the after situation is $6.80. The Court finds that the value of the Claimant's property after the taking, at its highest and best use, and after deduction of the cost of demolition, is $293,000.00 (rd) [(43,852 sq. ft. x $6.80 = $298,193.60, less demolition, $293,193.60)].

Accordingly, the total damages found by the court are as follows: $19,000.00 in direct damages for the loss of land and $84,000.00 in severance damages, or a total of $103,000.00 together with statutory interest thereon from the vesting date of July 24, 1994 to January 24, 1995, and from July 18, 1997 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.


March 21, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] All quotations are to the trial transcript, audiotapes or trial notes unless otherwise indicated.
[2] See, 815 Associates, Inc. v State of New York, 271 AD2d 398,399 (2d Dept 2000)(1962 appropriation of Claimant's property had created right of access to now adjoining State highway, since 1962 appropriation map was not labeled "without access". Thus, in 1993 appropriation any loss of the right of access is compensable).
[3] A road that exists only on maps.
[4] Exhibit 13, a sketch of a proposed building before the taking made by Mr. Portman, was admitted with the limitation that issues concerning such sketch could be discussed in post-trial submissions, since the State had never received any notice concerning the document. Such submissions include a memorandum from the State with two exhibits attached. The exhibits are an additional report from Mr. Cramer dated June 26, 2002 commenting on the sketch with code provisions, and a report from an engineering firm dated June 27, 2002. Claimant chose to respond to these submissions in his post-trial memorandum. The Court now finds on reconsideration that the authors of these materials submitted by the State were not appropriately subject to cross-examination concerning the contents therein, and thus these reports will not be considered. Because Exhibit 13 was admitted subject to rebuttal, it is hereby excluded as well. Mr. Portman's testimony during the trial and his report admitted at the trial, have been reviewed by the court.
[5] The Court notes that in Claimant's post-trial memorandum there are quotations from DOT regulations - not directly discussed by the witnesses at trial - that suggest that no driveway or other curb cut would be allowed out to Route 25A from Claimant's property. [Claimant's Post-Trial Memorandum, Pages 39-40].
[6] An appraisal filed under 22 NYCRR §206.21(b) by an expert not called to testify may nonetheless be admitted as an "admission against interest relative to factual descriptive data, the before and after market values and the damage figures," provided a proper foundation is laid. Sullivan v State of New York, 57 Misc 2d 308,309 (Ct Cl 1968).
[7] See, American Institute of Real Estate Appraisers, The Appraisal of Real Estate, Page 457 (12th Ed. 2001).