New York State Court of Claims

New York State Court of Claims

McCURDY v. THE STATE OF NEW YORK, #2005-014-006, Claim No. 101492


Damages awarded for a temporary easement which rendered the remainder of real property inaccessible and unavailable for development during the entire period of the temporary easement

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):

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

Signature date:
July 6, 2005
New York

Official citation:

Appellate results:
AFFIRMED 37 AD3d 779 2d Dept 1/27/07
See also (multicaptioned case)

This is a timely served and filed claim for damages resulting from the partial appropriation of real property owned by Claimant and a temporary easement thereon located in the Hamlet of West Islip, Town of Islip, Suffolk County. Such premises were appropriated in proceedings entitled “Babylon-Bayshore S.H. 743" Map 100, Parcel 122, and Map 192, Parcel 192, respectively, pursuant to section 30 of the Highway Law and the Eminent Domain Procedure Law. The Maps describing the appropriated parcel and temporary easement were stipulated into evidence by the parties (Exhibit 3 and Exhibit 4, respectively) and said maps and the descriptions set forth thereon are adopted by the Court and incorporated herein by reference. The parties stipulated that the date of vesting was April 7, 1999 (T-5) and the Court so finds. The parties further stipulated, and the Court finds, that Claimant was the fee owner on the date of vesting (T-7). As to the temporary easement, the parties stipulated it terminated on February 1, 2001 (T-6). The Court also adopts the parties’ additional stipulations that the damages for the fee taking is $850 (T-5) and that the subject had a before and after value of $8.75 per square foot (T-6). The Court has viewed the subject property.
The subject property is a vacant, unimproved parcel located on the north side of State Route 27A, the Montauk Highway, 75 feet east of the intersection of Pease Lane and Montauk Highway. The subject property is regular in shape; being approximately 150 feet deep and has approximately 75 feet of frontage along Montauk Highway. The parcel was approximately .250 acres or 10,888 square feet prior to the taking and was zoned “Residence B”. The taking consisted of 71 square feet (0.002 acres +/-) along the southerly property line adjacent to Montauk Highway. The taking was approximately 2.5 feet deep on the southeast corner and tapered to a point approximately midway (36.5 feet) along the southerly property line on Montauk Highway. The Temporary Easement consisted of 679 square feet and ran approximately 10 feet deep along the entire southerly property line and directly behind the fee taking.
As a general rule, the measure of damages for a partial taking is the difference between the property's value before condemnation and the value of the remainder thereafter (Mil-Pine Plaza v State of New York, 72 AD2d 460, 462). Upon a partial taking of property, as here, an owner is entitled to any consequential damages which arise from the State's use of the parcel taken" (Williams [E.] v State of New York, 90 AD2d 882, 883, citing Dennison v State of New York, 22 NY2d 409). Consequential damages consist of "the diminution in the value of the remainder resulting from the taking of a part and from the condemnor's use of the property taken" (Williams [E.] v State of New York, supra, at 883). Similarly, upon the taking of a temporary easement, the landowner is entitled to recover his loss in rental value during the term of such easement plus further loss, if any, resulting from damage to the fee arising from the use of the easement (Spencer v State of New York, 206 App Div 376, 377; see also Kauffman v State of New York, 43 AD2d 1004, affd 36 NY2d 745).
Given the stipulations entered into by the parties, and the adoption of same by the Court, the issue remaining before the Court for resolution was whether, in light of the holding in Matter of Kadlec v State of New York, 264 AD2d 420, Claimant was entitled to consequential damages flowing from the temporary easement rendering “the remaining property inaccessible and unavailable for development for the entire period of the easement...amounting to a de facto taking of his entire remaining property” ( JWD Realty v State of New York, Ct Cl, Scuccimarra, J., Claim No. 102213, UID #2003-030-034, [September 15, 2003]) and the parties litigated the Claim accordingly.
Claimant’s sole witness was his expert appraiser, Elinor Brunswick who identified her appraisal report (Exhibit 5). Brunswick testified that the highest and best use of the subject was for it to be developed as a single tenant medical office building consistent with surrounding parcels. To do so would require a zoning change from Residence B to a General Service T (GST) district (see Exhibit 5, pp 21- 25). The expert’s report disclosed that the neighborhood has evolved from single family residences to a mixed-use-area which includes, inter alia, a hospital and a high school (id.). Brunswick testified such a zone change was likely, given the changed use of the area, her review of similar zoning changes granted and “discussions with appropriate planning officials in the Town of Islip” (T-53). Brunswick opined that no developer would build while the temporary easement was in place and prevented access to the subject (T-33; 60). On cross-examination, Brunswick acknowledged the subject would require both a zone change and a yard width variance to be developed as she had opined (T-35) and that she had found no instance of relief from the yard width requirement (T-36).
Deborah Grillo, an eight-year Department of Transportation (DOT) employee in the Permit Unit (T-63) testified for Defendant. Grillo testified the Permit Unit issues work permits for access to the State’s highways and that there were no permits on file from 1983 to the date of trial for an entrance onto Montauk Highway from the subject (T-64).
Defendant’s next witness was Eugene Sciora, a DOT employee for 36 years, and an engineer-in-charge who was familiar with the project (T-68-70). Sciora testified that the work done in front of the subject consisted of, inter alia, the placement of curbs, sidewalks and decorative brick (T-70). Sciora testified that the work took between seven and ten days to complete (T-71). As to the temporary easement, he testified as engineer-in-charge he would not have permitted the contractor to store or maintain materials or equipment on the easement as it was a safety hazard. Sciora testified that if the owner of the property wanted access to the subject he would have ensured that same was available (T-80). Sciora acknowledged that during the project there was a time, between seven and ten days, when the Claimant could not have access to the subject (T-87). On cross-examination he testified that following the project there was a curb cut in front of the subject parcel (T-84).
Defendant read into evidence portions of Claimant’s examination before trial which disclosed Claimant was a dentist with an office at 501 Pease Lane, a property which Claimant did not own, but that was contiguous to the subject parcel. (T-92-93). Claimant testified that the subject parcel was sometimes used for parking in connection with his practice, and that the cars would enter from Pease Lane (T-94). Claimant stated he had not made any application to develop the subject parcel (id.).
Defendant’s expert appraiser, Lawrence Indimine, testified and identified his rebuttal report (Exhibit C) which addressed Claimant’s expert opinion regarding damages from the temporary easement (T-98). Indimine opined that the subject property was available for development during the time the temporary easement was in place and that the temporary easement had no negative impact on the subject (T-99). Indimine stated he relied upon the language of the temporary easement, particularly the second paragraph, and his experience with other improved parcels which had been the subject of temporary easements (id.). On cross-examination Indimine acknowledged his opinion was based upon improved rather than unimproved vacant parcels (T-100-101), stating he was unaware of an instance where a request was made for access to a vacant parcel across a temporary easement (id.). Indimine also testified there was nothing in the temporary easement that indicated what its duration would be (T- 104). In response to a question from the court, Indimine stated that if access to the property had been denied during the construction period that would have negatively impacted the property (T-110).
It is established that the standard for determining proper compensation in condemnation cases is "market value at the time of appropriation, that is, the price a willing buyer would have paid a willing seller for the property" (Matter of Town of Islip [Mascioli], 49 NY2d 354, 360). "The valuation is to be based upon the highest and best use of the property, regardless of whether the condemnee is so using the property at the time.” (Matter of Breitenstein v State of New York, 245 AD2d 837, 839, citing Matter of County of Suffolk [Firester], 37 NY2d 649, 652).
Although it is settled law that a party asserting a different highest and best use from the one existing at the time of the condemnation has the burden of proving a reasonable probability that the highest and best use it asserts would or could have been made of the subject property in the near future (Thompson v Erie County Indus. Dev. Agency, 251 AD2d 1026; Matter of Rochester Urban Renewal Agency v Lee, 83 AD2d 770; see Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, rearg denied, 34 NY2d 916), including rezoning (cf. Masten v State of New York, 11 AD2d 370, affd 9 NY2d 796; Matter of Town of Islip [Mascioli], 49 NY2d 354; Harwood v State of New York, 112 AD2d 741; Dittmer v State of New York, 187 AD2d 693), the Court is of the view that the parties’ stipulation as to value of the subject in the before and after situation renders that issue moot.
Turning to the Kadlec issue, it is Claimant’s position that, as a matter of law, the presence of the temporary easement across the subject’s entire frontage, without other access, gives rise to a de facto taking and an award for the rental value of the entire subject, not just the portion subject to the temporary easement (Claimant’s Post-trial Memorandum Points I and II). Claimant further asserts that the temporary easement in the instant Claim (Exhibit 4) is set forth in language identical to that in the Kadlec temporary easement (Exhibit 6)
thereby rendering Defendant’s fact based analysis inappropriate.
Defendant, on the other hand, argues the facts establish that Claimant never attempted to develop the subject, that he had alternative access to same and that the easement did not preclude Claimant from accessing his property and as such there was neither a taking nor damage to the remainder while the temporary easement was in place. Defendant further argues that based upon a lack of highway access and the inability to obtain necessary approvals the subject parcel was “never available for development” thereby limiting the award to the direct damages for the fee taking and the rental value of the temporary easement only.
The Court begins its analysis by observing the basic tenet that the amount of damages to which a landowner is entitled as the result of an appropriation is measured and fixed at the time of the taking (see e.g. Kravec v State of New York, 40 NY2d 1060; Chester Litho v Palisades Interstate Park Comm., 27 NY2d 323, 325; Wolfe v State of New York, 22 NY2d 292, 295) and that "subsequent remedial measures attempted by the condemnee, such as offering a right of access after the fact or otherwise limiting its original appropriation after the original taking, do not operate to reduce its damages" (Matter of County of Schenectady [Pahl], 194 AD2d 1004, 1006, lv denied 83 NY2d 756, lv denied 84 NY2d 806). In Matter of Kadlec v State of New York, supra, the Appellate Division, applying the settled law that an award of consequential damages is appropriate where a temporary easement “affects the availability for development of the claimant's remaining land” ( id. at 421 [citations omitted]) plainly held that where temporary easement blocked all access to the property owner's unimproved property, the temporary easement amounted to a de facto taking of the entire remaining property during the period of the temporary easement, resulting in damages based on the rental value of the entire remainder (id.). In Kadlec, the subject parcel had frontage on a public highway and on its remaining three sides were unimproved paper streets. Having reviewed the finding of the Court below in Kadlec (Kadlec v State of New York, Ct Cl, Silverman, J. Claim No. 91941 [unpublished opinion] , April 24, 1998) and the Appellate Division’s affirmance, this Court can find no basis to accept Defendant’s fact-based analysis (i.e. Claimant never attempted to develop the subject or apply for a highway work permit) or the opinion of its expert that the temporary easement did not prevent Claimant from accessing the subject. Rather, where as here -- and as in Kadlec -- a subject’s only access to a public roadway is compromised by an easement running the entire length of that frontage, the Court must find that access is denied and development impaired, resulting in a de facto taking. In reaching this conclusion, the Court also rejects the suggestion that access through a contiguous parcel, rather than a public highway, is suitable access for development purposes.
The Court therefore concludes that the value of the temporary easement is $ 11,400 per annum or $950 per month. The value of the 10,817 square feet at $8.75 per square foot is $94,650 (R). The Court accepts the rate of return of 12% (Exhibit 5, p. 47) and finds the annual rental value to be $11,400 (R) which yields a monthly rental value of $950.
Accordingly, Claimant is entitled to $850 for the fee taking, and $20,900 for the temporary easement ($950 per month from April 7, 1999, the date of vesting, to February 1, 2001, the date the easement was extinguished), for a total award of $21,750 with statutory interest thereon from the date of vesting of April 7, 1999 to October 7, 1999 and from December 1, 1999 (the date the instant Claim was filed) to the date of decision herein and thereafter to the date of entry of judgment.
The award to the claimant herein is exclusive of the claims, if any, of persons other than owners of the appropriated properties, 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.
All motions not heretofore ruled upon are hereby denied.

July 6, 2005
New York, New York

Judge of the Court of Claims


. Defendant conceded the easements were the same in “sum and substance” (T-59) and upon review the Court finds the reservation of rights and purposes paragraphs to be the same, excepting language specific to the description of each project.