New York State Court of Claims

New York State Court of Claims

DiGENNARO v. THE STATE OF NEW YORK, #2005-014-007, Claim No. 101250


Damages awarded for the appropriation of claimants’ home.

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:
Law Offices of Robert S. PowersBy Robert S. Powers
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy Donald E. Shehigian, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 13, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for damages resulting from the appropriation of real property owned by Claimants located in Roslyn Heights, Town of North Hempstead, Nassau County. Such premises were appropriated in proceedings entitled "Horace Harding Expressway Extension SH HHE 57-2" Map 213, Parcel 229 pursuant to section 30 of the Highway Law and the Eminent Domain Procedure Law ( Exhibit 3). 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 taking was October 11, 1996 (T-5), and the Court so finds. The Court further finds that Claimants took title to the subject property by deed dated May 12, 1990, and recorded in the Nassau County Clerk’s Office in Book 10075 of Deeds, Page 294 on June 27, 1990 (Exhibit 2). There was no dispute as to ownership of the subject property.
The subject property is a corner parcel improved with a single-family residence situated on the southwest corner of the intersection of the Long Island Expressway South Service Road (Service Road) and Colony Lane. The parcel is generally rectangular in shape. The north side of the parcel has frontage on the Service Road and the residence faces east - fronting on Colony Lane. The subject parcel was approximately 110 feet deep and has approximately 95 feet of frontage on its easterly property line along Colony Lane. The parcel was approximately .232 acres or 10,082 square feet prior to the taking. There was no dispute that the taking consisted of the entire subject parcel.
In addition to the Claimant, Michael DiGennaro, the only other witnesses to testify at trial were the real estate appraisers for the respective parties. The evidence established that the subject residence was in excellent condition, having been substantially renovated by the Claimants. The residence consisted of a basement, first and second floors and a garage which had been converted into a family room. There were three bedrooms and two and one-half bathrooms.
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 County of Suffolk [Firester], 37 NY2d 649, 652)" (Matter of Breitenstein v State of New York, 245 AD2d 837, 839). “A non-compulsory sale between a willing seller and buyer is ordinarily regarded as a good test or criterion... in determining the value of the land in controversy. The opinion of the buying public so expressed in a free market is what usually determines value [citation omitted]” (Village of Lawrence v Greenwood, 300 NY 231, 237). As bearing on such value, it is competent to show any fact which the owner would naturally and properly bring to the attention of a buyer with whom he was negotiating a sale (In re City of Rochester, 234 AD 583, 586 [citations omitted]). Where, as here, the entire property is taken, the owner is entitled to the price which the property would bring in the market when offered for sale by one who desires but is not obliged to sell, and when purchased by one who is not compelled to buy (id.). The quality of construction of the dwelling and the landscaping may be factors to be considered in making adjustments between the subject and other comparable sales (McKeon v State of New York, 31 AD2d 566).
Before applying the foregoing principles to the valuation of the subject parcel, the Court must first address Defendant’s trial motion to strike the appraisal of Claimants’ expert. At the time of trial, the Court allowed the report (Exhibit 1) into evidence, subject to the Court's reservation of decision on the motion to exclude it (see Matter of Algonquin Gas Transmission Co. v Williams, 104 AD2d 803) and the parties briefed the issue in their post-trial submissions.
Appraisals are governed by the requirements of Court of Claims Act § 16 (§16) and 22 NYCRR 206.21 (the Rule) of the Uniform Rules for the Court of Claims. The Court Rule and the statute must be read together (Mara v State of New York, 38 AD2d 789). The underlying policy of § 16 is to permit evidence of sales, not included in the original appraisals, in support of the original appraisals (Leider v State of New York, 69 Misc 2d 998, affd 45 AD2d 82) but not to prove values beyond those set forth in the original appraisal (see Farrington v State of New York, 33 AD2d 731). The purpose of the Rule is to enable preparation for trial with knowledge of each other's valuations and the foundations and justifications thereof (Parisi v State of New York, 62 Misc 2d 378, 382). As such, just compensation can be determined based solely upon the facts unhindered by gamesmanship (Novickis v State of New York, 44 AD2d 508).
Defendant, in support of its application cites to a number of deficiencies with Claimants’ appraisal including an incorrect valuation date; failure to include details of the comparable sales - such as the parties’ names, office, book and page references; failure to include details of the appropriation; before and after values of the property; separate values for the land and the improvements. Defendant also points to the acknowledgment by Claimants’ appraiser that he “definitely was not” (T- 60) hired to prepare an appraisal suitable for filing in an eminent domain proceeding. Defendant argues that while no one defect is fatal, (and candidly concedes others have no impact on the value given the nature of the subject and the taking) the cumulative effect requires the striking of the entire appraisal.
Claimants oppose the application arguing Defendant should have requested the missing information earlier; the witness was available at trial to supply the information; certain of the information is irrelevant to the instant valuation and lastly, there is no prejudice to the Defendant. Claimants also assert sufficient information was provided to verify the comparable sales information.
In Smyles v State of New York (295 AD2d 437) the Appellate Division reversed the decision of the trial court, relied upon by Defendant at the time of submission, which granted an application to strike Claimant’s appraisal. The trial court held that Claimant’s violation of §16
--- by failing to include the addresses of all parties to the comparable sales and failing to verify the sale with one of the parties to the transaction --- warranted preclusion. In reversing, the Appellate Division held that “only those transactions which could not be verified by the State should have been rejected” (id. at 438) and not the entire appraisal report. The Appellate Court added there is no requirement that a comparable sale “be verified by a party from that sale or lease” (id.).
To be sure, the absence of recording information [book, page and county], grantee and grantor names and addresses and accurate information as to the municipality
of the comparable sales violates the provisions of § 16. The only information available to the Defendant upon receipt of Claimants’ appraisal was the date of sale, the street address and a brief description of the property which, this Court holds, does not constitute substantial compliance with either the statute or the appraisal rule. Applying the Appellate Division’s guidance to the instant Claim, the Court cannot conclude that sufficient information existed in the appraisal to permit verification of the comparable sales by Defendant.
Accordingly, the Court grants Defendant’s application and strikes the appraisal report and testimony of Claimants’ appraiser.

The Court now turns to value the taking using the Defendant’s evidence based upon the comparable sales approach to valuation. The highest and best use of the subject at the time of the taking was for a single-family residence and the Court so finds. The Court notes that each of Defendant’s comparable improved sales is within the same neighborhood as the subject and each was constructed sometime in 1946 as was the subject. Similarly, Defendant’s comparable land sales were located within Roslyn Heights and each had an existing home demolished and replaced with new single-family construction. In determining the land value, the Court finds Defendant’s appraiser made appropriate adjustments to the three land sales given their location, and therefore the Court accepts Defendant’s analysis and finds the land value to be $154,000.
Turning to the improved sales, in reviewing Defendant’s appraisal and the testimony of its expert, the Court accepts the conclusion that the location of the subject property immediately adjacent to the Service Road of a major highway made it less desirable than the nearby comparable sales located off the Service Road and therefore, the location adjustments made were appropriate. The Court also finds that the adjustments, or lack thereof as applicable, to the comparable sales for a garage and zoning were likewise appropriate.
Having adopted the taking map, the Court finds that Defendant’s appraiser undersized the subject parcel by 90 square feet, which affects the adjustments made for land size. In addition,
while a positive land size adjustment for each of the three sales is appropriate, the calculation of the adjustments in the defendant’s appraisal (at $7.92 per square foot) is not adequately supported in the record. According to the appraisal, this figure was derived from a comparison of the unadjusted sale prices and sizes of comparable land sales A and B. The difference in price was $20,000, and the difference in land size was 2,526 square feet (page 30 of defendant’s appraisal). No further explanation for the use of this figure as an adjustment to the comparable improved sales was provided.
Nonetheless, a logical calculation of an adjustment for land size is available from the defendant’s analysis of comparable land sales. The adjusted sale prices of the three land sales as proffered by the defendant’s appraiser, and which the Court has adopted, indicate that the average of the per square foot adjusted sale prices is approximately $25 per square foot. The Court adopts that figure and has applied it to each of the three comparable improved sales.
Accordingly, the adjustments the Court adopts for land size due to the subject’s greater size are: sales A and C: $25,600, and sale B: $21,800.
The Court also finds that Defendant’s appraiser undersized the square footage of the residence when, instead of calculating the actual square footage of the second floor, he multiplied the first floor square footage by 1.681. Using the measurements of the second floor contained in Defendant’s appraisal the Courts finds the square footage of the second floor to be 704 square feet
. Adding that to the first floor and family room measurements (800 square feet and 230 square feet, respectively) yields a residence with 1,734 square feet. Applying the figure used by the defendant’s appraiser of $50 per square foot, this results in adjustments to the three improved sales of $10,800, $7,100 and $20,050, respectively for Comparable Sales A, B and C.
Lastly, the Court is of the view, given the superior condition of the subject, that a uniform condition adjustment is appropriate for each of the comparable sales given their stated condition as good. The Court therefore adopts the $50,000 condition adjustment of Sale B for all three sales.
Applying the net adjustments to the comparable sales yields a range of value from $348,900 for Sale B to $378,150 for Sale C. The adjusted value for Sale A is $371,400. Accordingly, the Court finds the value of the subject, as improved, on the date of the taking to be $370,000. Given this was a total taking, the after value of the subject was zero.
The Court therefore finds the Claimants were damaged in the amount of $370,000 allocated $154,000 to land and $216,000 to the improvements. Claimants are entitled to an award of $370,000 with statutory interest thereon from the vesting date of October 11, 1996 to April 11, 1997 and from October 15, 1999 (the date the instant Claim was filed) to the date of decision herein and thereafter to the date of entry of judgment for the permanent appropriation. 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 there of 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 13, 2005
New York, New York

Judge of the Court of Claims

[1]. Claimants’ appraiser testified that the comparable sales were not in East Hills - as listed in his appraisal - but were in Roslyn Heights (T-63 - 64), explaining that brokers will use a nearby municipality in hopes of a higher price (id).
[2]. The Court also notes that the record at trial would have prevented a finding that the comparable sales used by Claimant’s appraiser were arm’s-length transactions (see e.g. T-47 [appraiser unaware of buyer and seller at time of appraisal]).
[3]. As a result, there is no need for the Court to entertain the application by the defendant at trial to view the improved sales in the claimants’ appraisal. In this regard, the Court was unable to view the subject property, which both sides agreed was no longer in existence at the time of trial.
[4]. There was no testimony to indicate any of the second floor was unusable due to the slope of the roof.