New York State Court of Claims

New York State Court of Claims

M & R STONY BROOK v. STATE OF NEW YORK, #2005-014-003, Claim No. 99801


Synopsis


Damages awarded for the permanent appropriation of a portion of a parcel of real property, including a de facto taking 18 months prior to the vesting date.

Case Information

UID:
2005-014-003
Claimant(s):
M & R STONY BROOK, INC.
Claimant short name:
M & R STONY BROOK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99801
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 J. Gardner Ryan
Third-party defendant’s attorney:

Signature date:
August 26, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is an unassigned claim for the permanent appropriation of a portion of a parcel of real property located in Suffolk County.
The property is identified as Parcel No. 64 on Map No. 29, Hauppauge - Port Jefferson S.H. 9376, in the Town of Brookhaven, County of Suffolk. The Court adopts as accurate and incorporates by reference the description of the appropriated property, which was taken pursuant to section 30 of the Highway Law and the Eminent Domain Procedure Law, as shown on the map and description filed in the Suffolk County Clerk’s Office, a copy of which is annexed to the claim, and which was received in evidence as Exhibit 4. The parties agree that title to the property vested in the State on January 5, 1999. The claim was duly filed on February 16, 1999. As required by Court of Claims Act section 12(4), the Court has viewed the subject property.
The subject property, which is roughly triangular in shape, consists of 19,737 square feet, of which 404 square feet was taken in fee.
The subject property is located at the north east corner of the intersection of Route 347 and Hallock Road in Stony Brook. At the time of the taking the subject property was vacant, although it had been leased by the claimant for development of a retail florist shop.
The portion of the property taken consisted of a strip of land comprising the frontage of the property along both Route 347 and Hallock Road. As a result, both sides agree that after the taking the only value of the property is for sale to an adjacent owner, since it no longer has any access to either roadway.
Both sides essentially agree that the highest and best use of the property, before the taking, was for commercial development. The claimant based its valuation on comparable leases of vacant land for commercial use, while the defendant relied upon comparable sales of vacant property. Given the record presented, the Court is required to choose one of two different methods of valuation. Upon consideration of the record, including the testimony of the two appraisers, the Court has concluded that the comparable sales of property in extremely close proximity to the subject property constitute the most reliable basis in the record for the valuation of the subject property.
The defendant’s three comparable sales of vacant land are located close to the subject property. Based upon the information in the record concerning those properties, and upon the entire testimony of the defendant’s appraiser, however, the Court has modified the adjustments made to those sales in order to arrive at a value of the subject property, before the taking.
The adjustments for time are inadequate, based principally upon the fact that the per square foot sale price of sale #1 is approximately 50% more than that of sale #2, which occurred a little less than two years earlier. Given the proximity of these two sales to each other, and to the subject property, the time adjustments for all three sales have been increased by 5%. The location and corner adjustments have been considered together, and have been increased. The adjustments for shape and utility for sales #1 and #2 are excessive, and have been reduced. In addition, although the defendant’s appraiser indicated that the adjustments for shape and utility included consideration of frontage on public roads, his testimony suggested that inadequate consideration was given to the significant difference in frontage when compared to the subject property, a difference which warrants a separate adjustment which has been applied. The adjustments for topography are not supported, and have not been applied.
The sale price of defendant’s comparable sale #1, located opposite the subject property on the other side of Route 347, was $16.86 per square foot in January 1997. The property consists of 78,308 square feet, with approximately 230 feet of frontage on Route 347. The Court has adopted a time adjustment of plus 10%, an adjustment for corner and location of plus 15%, an adjustment for size of plus 20%, an adjustment for shape and utility of minus 10%, and an adjustment for frontage of plus 5%. As a result, the adjusted sales price of sale #1 is $24.10.
The sale price of defendant’s comparable sale #2, located east of the subject property on the same side of Route 347, was $11.20 per square foot in April 1995. The property consists of 17,851 square feet, with approximately 100 feet of frontage on Route 347. The appraiser’s downward adjustment for sale conditions, based on the purchaser being the owner of adjoining property, is not supported in the record and has not been adopted. The Court has adopted a time adjustment of plus 20%, an adjustment for corner and location of plus 15%, an adjustment for shape and utility of minus 5%, and an adjustment for frontage of plus 10%. As a result, the adjusted sales price of sale #2 is $16.13.
The sale price of defendant’s comparable sale #3, located north of the subject property on the same side of Hallock Avenue, was $8.60 per square foot in September 1994. The property consists of 51,750 square feet, with approximately 150 feet of frontage on Hallock Avenue. The Court has adopted a time adjustment of plus 20%, an adjustment for corner and location of plus 25%, an adjustment for size of plus 10%, an adjustment for shape and utility of minus 10%, and an adjustment for frontage of plus 10%. As a result, the adjusted sales price of sale #3 is $13.93.
The mean of the adjusted sales price of the three comparable properties is approximately $18.00, which the Court adopts as the value of the subject property before the taking.
As a result, the value of the property before the taking was $355,266. The parties agree that the value of the property after the taking was $31,000. The direct damages to the claimant amount to $324,266.
The Court has determined that there was a de facto taking by the defendant when the State Department of Transportation, by letter dated July 8, 1997, determined that a curb cut on the Route 347 side of the subject property in order to provide access to it could not be “permitted given the constraints of this site.” The basis for this action was stated as “the interest of traffic safety.” In the letter, it was suggested that claimant “explore the possibility of securing an agreement with the adjacent property owner” in order to obtain access from that site.
By taking this action, the defendant prevented claimant from deriving any substantial beneficial use from the subject property. Matter of Keyestone Associates v Moerdler, 19 NY2d 78, 88; City of Buffalo v J.W. Clement Company, 28 NY2d 241.
In accordance with the foregoing, the claimant is entitled to a total award of $324,266, with statutory interest from July 8, 1997 to the date of this decision and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002, and Court of Claims Act §19(1).
The award to claimant herein 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 properties or contiguous thereto, and is exclusive also of claims, if any, for the value of or damage to easements or appurtenant facilities for the construction, operation or 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.

August 26, 2005
New York, New York

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