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
. 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.
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
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).
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.
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
; 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.
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.
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
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 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.
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
Let judgment be entered accordingly.