New York State Court of Claims

New York State Court of Claims



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):

James J. Lack
Claimant’s attorney:
Reilly, Like, Tenety & AmbrosinoBy: Irving Like, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Martin K. Rowley, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim of Susquahanna Truck Repair, Inc. (hereinafter “claimant”) to recover damages for a permanent easement and a temporary easement on claimant’s property pursuant to Eminent Domain Procedure Law and §30 of the Highway Law, in a proceeding entitled “Sunrise Highway Extension, Part 2A, State Highway No. 8470", the property being located in Suffolk County, as reflected on Map No. 35, Parcel No. 42 (permanent easement); and Map No. 36, Parcel No. 43 (temporary easement). Vesting occurred on May 7, 1999. The original claim was filed on August 28, 2000 and an amended claim was filed on December 4, 2000. The easement maps and descriptions contained therein are adopted by the Court and incorporated by reference. The Court has made the required viewing of the property which is the subject of this claim.
In addition to both appraisers concluding that claimant is the owner of the subject property (Exhibits 6 and A), claimant established title to the subject property by a copy of a Certificate of Title dated September 10, 1981 (claimant’s Exhibit 3).
The subject property is located on the northeast corner of Newark Street and Queens Avenue, Village of Lindenhurst, Babylon Town, Suffolk County. The property consists of 23,065 square feet
. At the time of taking, the property was zoned “Industry”. On the date of taking, it was improved with a one-story, masonry, industrial building and borders on property belonging to the Long Island Rail Road improved with railroad tracks for an active branch of the Rail Road.
On May 7, 1999, the State acquired a permanent easement of approximately 3,328 square feet. The area of the permanent easement runs along the subject’s rear lot line for a distance of 216.90 feet and has an average depth of 16.60 feet. The permanent easement was acquired for drainage purposes.
The appraisers agree that the highest and best use of the property before and after the taking is for industrial use.
The primary question for the Court to determine is what effect the taking had on the remainder. In its Post-Trial Memorandum, defendant asks the Court to exclude claimant’s appraisal as legally deficient. Defendant notes that the Uniform Rules for the Court of Claims §206.21 enumerate those items which at minimum must be contained in an appraisal. One of the items is direct damages that the property has suffered. Defendant points out that claimant’s appraiser has omitted the direct damages in her report and therefore, the claim is legally deficient. However, during her testimony, the appraiser testified that there were no direct damages as a result of the acquisition of the permanent easement.

The Court will attribute no value to claimant’s appraisal on the issue of direct damages. Therefore, the Court is without a range of value for direct damages. The Court adopts defendant’s direct damages of $13,300.00.
The Court adopts defendant’s before taking value of the land, as vacant, to be $5.00 per square foot.
The Court must next determine if there was any severance damage to the remainder as a result of the easement. Where the State takes a portion of claimant's property, claimant is entitled not only to direct damages for the taking, but also consequential or indirect damages for the diminution in the value of the remaining property as a result of the taking (Fason Properties Inc. v State of New York, Claim No. 81102, Blinder, J., filed August 29, 1994). As a general rule, the measure of damages in a partial taking case is the difference between the fair market value of the whole property before the taking and the fair market value of the remainder after the taking (Acme Theatres, Inc. v State of New York, 26 NY2d 385).
In determining the before value of the subject property, inclusive of improvements, the appraisers used the sales comparison of improved properties and the income approach to valuation. From the appraisals, it is clear each of the appraisers relied most heavily on the sales comparison of improved properties. The Court will concentrate its analysis on this method. However, the Court is mindful of the other methods used by the parties and the conclusions reached.
In making the sales comparison of improved properties, each of the appraisers evaluated three comparable properties. None of the comparables examined are common to the adverse party’s appraisal. In examining the adjustments made by claimant’s appraiser to her comparables, the Court adjusts the land/building ratio of each of the comparables. The Court finds a 0% adjustment to sale 4, and a 5% adjustment for sales 5 and 6. Claimant’s comparables have values of $61.32 (sale 4); $71.93 (sale 5); and $67.98 (sale 6). The Court also adjusts defendant’s land/building ratio for each of the comparables. The Court finds a 5% adjustment for sale 1, and a 10% adjustment for sales 2 and 3. Defendant’s range of values are $58.10 (sale 1); $58.71 (sale 2)
; and $44.52 (sale 3).
The Court adopts a value of $60.50 per square foot. Therefore, the value of the subject property, inclusive of the improvements, before the taking is $242,000.00 (4,000 square feet x $60.50 per square foot).
In determining the after value of the land, as vacant, of the subject property, the Court has examined the values put forth by the parties and adopts the value, as found by defendant, to be $4.45 per square foot.
In analyzing the after value of the subject property, the Court will again rely most heavily on the sales comparison of improved properties to value the subject property. After reviewing the sales and the adjustments in the after situation, the Court would maintain the adjustments made in the before situation. In addition to the adjustments previously made, the Court makes the following adjustments to claimant’s appraisal: 0% for the age condition; -5% for the utility adjustment; -5% for the marketability. These adjustments, as well as the ones found by the Court before the taking, apply to each of the sales. The values of claimant’s comparables, as adjusted, are $55.48 (sale 4); $66.18 (sale 5); and $59.12 (sale 6). The Court adopts defendant’s adjustments after the taking, as well as the ones found by the Court before the taking, and finds the values of defendant’s comparables ready to be $54.87 (sale 1); $55.51 (sale 2) and $41.55 (sale 3).
The Court adopts a value of $55.50 per square foot. Therefore, the value of the subject property, inclusive of the improvements, before the taking is $222,000.00 (4,000 square feet x $55.50 per square foot).
The total damages found by the Court are $20,000.00. This is found by subtracting the value of the subject in the after situation ($222,000.00) from the value of the subject in the before situation ($242,000.00). The Court finds the direct damages to be $13,300.00. This figure is obtained by multiplying the value of the land ($5.00) x the area of the permanent easement (3,328 square feet) x 80%.
Indirect or consequential damages are found in the sum of $6,700.00.
In addition to the permanent easement, the State also acquired a temporary easement of 4,352 square feet in the rear yard.
Claimant is entitled to the fair rental value for the area of the temporary easement. Each of the parties finds consequential damages to the temporary easement. Claimant’s appraiser found a monthly rental value of $660.00, while defendant’s appraiser found a monthly rental value of $1,190.00. The Court will adopt defendant’s value of $1,190.00 per month. The temporary easement was terminated on April 3, 2001 (Defendant’s Exhibit C). The temporary easement was outstanding for 23 months (vesting date of May 7, 1999, to the termination date of April 3, 2001). Therefore, the value of the temporary easement is $27,370.00 (23 months x $1,190.00).
In addition to these damages, claimant seeks a cost to cure of $71,650.00. Included in this figure is $60,000.00 for masonry repairs, $8,650.00 for demolition of an interior wall and $3,000.00 for repair of a fence. The only cost to cure put forth by defendant is $3,250.00 for masonry repairs.
According to the evidence adduced at trial, claimant’s building was built in 1982. At present, claimant’s building has cracks in the cement blocks. Claimant attempts to attribute the repair of the building to the project done by defendant. However, claimant’s principal, William Fagan, admits that cracks were present in the building prior to the beginning of the project. In support of the $60,000.00, claimant called Anthony Corbo as a witness. Mr. Corbo supplied an estimate for the repairs which was put into claimant’s appraisal (claimant’s Exhibits 6 and 8). Upon cross-examination, Mr. Corbo stated that the work he was proposing was not present in the building at present.
The “repairs” that Mr. Corbo seeks to make to claimant’s building are structural in nature and not in way of repair. The subject property is fronted by No. Queens Avenue, which is a dedicated truck route, and it is bordered in the rear by the Long Island Rail Road. According to the testimony of defendant’s engineer, each of these factors, as well as the building’s settling, would have contributed to the cracks in claimant’s building.
Claimant’s proof in this area was wholly inadequate. Claimant failed to timely file an expert report to support any argument or proof as to how defendant’s project damaged claimant’s building, as opposed to the other contributing factors.
The Court awards claimant the cost to cure as found by defendant, in the sum of $3,250.00. To prove the remaining $11,650.00 of the cost to cure, claimant offers the Court an unsigned “agreement” with a handwritten promise to move the interior wall (claimant’s Exhibit 15). In addition, claimant offers the Court an unsigned contract (claimant’s Exhibit 17) to show the proposed cost of demolishing and moving an interior wall. To support the request for fencing, claimant offers the Court an unsigned estimate of a fencing company for $3,000.00 (claimant’s Exhibit 16). There is no evidence that any of the work was done or that claimant had a signed agreement with defendant for these particular items. The Court finds no support to award these costs.
Accordingly, it is the finding of the Court that claimant is entitled to an award of $20,000.00, with statutory interest thereon from the vesting date of May 7, 1999 to November 7, 1999 and from August 28, 2000 to the date of decision herein and thereafter to the date of entry of judgment for the permanent easement; and $27,370.00 for the temporary easement together with $3,250.00 for costs to cure.
The award to claimant herein is exclusive of the claim, if any, of persons other than the owners of the appropriated property, their tenants, mortgages 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.
To the extent a filing fee has been paid, it is recoverable pursuant to Court of Claims Act §11-a(2).
Let judgment be entered accordingly.

March 31, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].Defendant’s square footage was 265 square feet less than claimant’s square footage. Claimant included a small triangular piece of property claimant was in contract to buy from the County of Suffolk (claimant’s Exhibit 20). The Court includes the property in determining the size of the subject party.
[2].As the parties did not order a transcript, the Court does not have a page to reference.
[3].The Court’s finding differs from defendant’s due to defendant’s breakdown of the permanent easement area. The Court treats the entire permanent easement area equally.
[4].In examining defendant’s sale 2, the Court notes that the sale price per square foot was $58.02 which was then adjusted downward by an 8% time adjustment. The adjusted sale price was $53.38 per square foot. However, defendant failed to apply the net adjustments to the adjusted sale price. The Court believes this was a mistake, as it is inconsistent with the treatment of the other comparables. The Court will apply its net adjustments to the time adjusted sale price of $53.38 per square foot. This situation also applies to the after taking adjustments.
[5].Although claimant is unable to build on this area, the area is still useable as storage area as it was before the taking. Therefore, the Court adopts that claimant has 80% use of the permanent easement area.
[6].The Court finds no merit to claimant’s alternate argument that defendant took over the entire 11,000 square feet of the rear yard.