New York State Court of Claims

New York State Court of Claims

MORRELL v. THE STATE OF NEW YORK, #2005-014-001, Claim No. 99486


Synopsis


Damages awarded for permanent and temporary appropriation of portions of a parcel of real property; proof was insufficient to support an award for severance damage.

Case Information

UID:
2005-014-001
Claimant(s):
KENNETH W. MORRELL and DOLORES E. MORRELL
Claimant short name:
MORRELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99486
Motion number(s):

Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant’s attorney:
Flower, Medalie & MarkowitzBy Edward Flower
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy Assistant Attorney General Martin Rowley
Third-party defendant’s attorney:

Signature date:
March 15, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is an unassigned claim for the permanent and temporary appropriation of portions of a parcel of real property located in Suffolk County.
The property is identified as Parcel No. 384 on Map No. 373, and Parcel No. 385 on Map No. 374, Port Jefferson-Riverhead Part 1, S.H. 8094, in the Town of Brookhaven, County of Suffolk. The Court adopts as accurate and incorporates by reference the description of the appropriated property as shown on the maps and description filed in the Suffolk County Clerk’s Office, copies of which are annexed to the claim, and which were received in evidence as Exhibit 4. The parties agree that title to the property vested in the State on September 18, 1995. The claim was duly filed on December 14, 1998. As required by Court of Claims Act section 12(4), the Court has viewed the subject property.
The subject property consists of 5,550 square feet, of which 1,325 square feet was taken in fee, and with respect to which a temporary easement of 281 square feet existed from the date of the taking until July 14, 1997.
The subject property is located at the south east corner of the intersection of Route 25A and Oakland Avenue in Miller Place. At the time of the taking the subject property was vacant. Both sides agree that the highest and best use of the property before the taking was for commercial development, although the claimants’ appraiser concluded that such development would specifically take the form of a 900 foot square building, based upon the opinion of the claimants’ engineer, who also testified. The significance of this specificity arises with respect to the parties’ disagreement as to the highest and best use of the property after the taking, and as to whether the taking resulted in severance damages to the remainder of the property.
It is the defendant’s position that the highest and best use after the taking is once again for commercial development, without limitation, and that there are no severance damages to the remainder of the property.
It is the opinion of the claimants’ engineer that after the taking the maximum commercial development possible would be a 450 foot square building, which in the opinion of the claimants’ appraiser is not economically feasible. As a result, the claimants’ appraiser concluded that the highest and best use after the taking is for absorption by an adjacent property owner, resulting in a nominal value, which the appraiser sets at 10% of the value before the taking. This conclusion is the basis for the claimants’ position that there were significant severance damages as a result of the taking.
The record does not support the claimants’ appraiser’s opinion that it was reasonably probable that two variances necessary for the development of a 900 foot square building would have been obtained. See In re Shorefront High School, City of New York, Borough of Brooklyn, 25 NY2d 146; Masten v State of New York, 11 AD2d 370, affd 9 NY2d 796.
The precision implicit in the approach taken by the claimants as to the use of the property for a very specific size building (both before and after the taking), is factually unsupported by the evidence in the record. The testimony of the claimants’ appraiser and engineer does not necessarily lead to their very specific conclusions that a commercial structure of 900 square feet (before the taking) and one of 450 square feet (after the taking) constitute the only possible use of the property. Ultimately, the engineer’s testimony was not how the property could be developed, but rather his subjective opinion as to how it would be developed.
Even if the Court were to accept the claimants’ engineer’s opinion with respect to the size of the buildings, before and after the taking, the appraiser’s opinion that a 450 square foot building would be economically unfeasible is not supported elsewhere in the record. While it may be that the reduced size of the remainder affected its value per square foot, which might provide a basis for severance damages (see Madowitz v State of New York, 288 AD2d 442), no such evidence was offered by the claimants apart from the appraiser’s opinion that it was essentially rendered worthless.
Upon consideration of the entire record before the Court, therefore, the highest and best use of the property, both before and after the taking, is for commercial use consistent with applicable zoning, without any further limitation.
In arriving at a determination of the value of the subject property, both before and after the taking, the Court has examined the sales of comparable properties in the two appraisals and has considered the related testimony of the parties’ appraisers.
Upon consideration, it is apparent that the three sales in the claimants’ appraisal constitute a more reliable basis for the valuation of the subject property, principally because they are in closer proximity to the subject property than the sales in the defendant’s appraisal. Accordingly, the Court has adopted the selected unit value in the claimants’ appraisal, $13 per square foot, as the basis for valuing the subject property, both before and after the taking, resulting in direct damages of $17,225.
In view of the foregoing determination, it is not necessary to address the claimants’ proffer of prior decisions of the Court of Claims and of prior appraisals undertaken by the defendant pertaining to the contemporaneous appropriation by the defendant of real property in the vicinity of the subject property, which the claimants sought to have the Court consider as demonstrating that the defendant’s valuation of the subject property was unreasonably low.
Applying the discount rate offered by the claimants’ appraiser (12%) to the value of the area of the temporary easement, based upon the valuation of the property as determined above ($13 per square foot x 281 square feet), the Court has calculated the damages resulting from the temporary easement as $438 per year, or $37 per month. The easement existed for a few days less than 22 months, so that the damages attributable to it amount to $814.
In accordance with the foregoing, the claimants are entitled to a total award of $18,039, with statutory interest from September 18, 1995 to the date of this decision and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002, Court of Claims Act §19(1) and EDPL §514(B).
The award to claimants is exclusive of the claims, if any, of persons other than owners of the appropriated property, their tenants, mortgagees or 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 or contiguous thereto, and is exclusive of any 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 or railroad lines.
Any motions not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.

March 15, 2005
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims