V. THE STATE OF NEW YORK, #2006-019-002, Claim No. 100512
After trial, court awarded claimant total damages of $577,700 for partial
appropriation including direct damages of $55,000, indirect damages of $510,000,
as well as $12,700 for cost to cure; court adopted claimant's appraisal
including unity of use theory, proof of highest and best use, and
TWO SULLIVAN STREET, A NEW YORK TRUST
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
JOSHUA J. EFFRON, ESQ.
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
February 10, 2006
See also (multicaptioned
This is a timely filed claim for damages caused by the partial appropriation
pursuant to the Eminent Domain Procedure Law and Highway Law § 30 of
properties owned by claimant in a proceeding entitled "Liberty-Woodbourne, Part
1, S.H. 1691, Sullivan County, Town of Liberty," as reflected on Map Nos. 73 and
66, Parcel Nos. 89 and 90. A trial in this matter was held on November 29 and
30, 2004 in the Binghamton District. Thereafter, the parties requested and were
granted additional time to submit post-trial memorandums. The court has made
the required viewing of the properties which are the subject of this claim.
(CCA § 12 ).
Claimant acquired title to the properties by deeds recorded in the Sullivan
County Clerk's Office on January 14, 1997 (in Liber 1921 of Deeds, page 77) and
February 26, 1997 (in Liber 1928 of Deeds, page 540). The appraisers of both
parties conclude that claimant was the owner in fee of the subject properties.
Appropriation Map Nos. 73 and 66, describing the appropriated Parcel Nos. 89
and 90, were filed in the Sullivan County Clerk's Office on December 11, 1997
which the court finds was the date of the takings. The appropriation maps and
descriptions contained therein are adopted by the court and incorporated by
reference. This claim was filed on June 9, 1999. This claim has not been
assigned or submitted to any other court or tribunal for audit or
Mobil Gas Station Parcel
Before the taking the gas station parcel was comprised of approximately .42
acres (18,295 square feet)
with 130.65 feet of frontage located on Sullivan Avenue and 127.62 feet of
frontage on Route 52, just north of the off-ramp for Route 17 (Exit 100) in the
Village and Town of Liberty. The parcel is located in a commercial zoning
district. The topography is a gradual up-slope from Sullivan Avenue and a
gradual down-slope from Route 52.
The property is improved with a one-story masonry/brick gas station and an auto
service facility. The building was constructed in 1997 containing 7,604 square
feet to replace an older building. The building was setback 27 feet from
Sullivan Avenue and 16 feet from Route 52. The exterior of the building
contains a canopy with recessed lighting. The building is divided into two main
functions, office space and an auto service area. The office space includes
offices, bathrooms, waiting areas, and a Hertz rental car office. The auto
service area contains seven overhead doors with five lifts for alignments,
repairs, and body shop services. There is also a spray paint room, a mezzanine
for compressors and tire storage and a 750-gallon waste oil storage tank.
The taking consisted of .05 acres or 2,185 square feet of asphalt
The building remained physically the same as before the appropriation. Thus,
after the taking the gas station parcel was comprised of approximately .37 acres
(16,110 square feet). (St's Ex A, p 81).
Prior to 1996 this parcel was owned by Sullivan County Oil Company and leased
to Stanley and Linda Miller. In May 1996, the Millers entered into a contract
for the purchase of said parcel with the closing occurring in January 1997.
(Cl's Ex 8). The purchase price of the gas station was $750,000, subject to a
variety of requirements including the following: the purchase of gasoline
products at a set price; the sale of a minimum of 550,000 gallons of gasoline
per year and, if the minimum was not met, the cost of gasoline would be six
cents per gallon for each gallon less than 550,000 gallons; and that the
purchasers construct a new service station and repair shop at a minimum cost of
$200,000. (Cl's Ex 8, ¶ ¶ 20, 22, & 23). In accordance with
these requirements, the Millers constructed the new service station and repair
shop, but the Village of Liberty required as a condition to the issuance of a
building permit that claimant own both parcels and consolidate them into one tax
map which was accomplished on February 26, 1997. (Cl's Ex 3).
Auto Service Facility Parcel
Before the taking, the total land area was approximately .33 acres (14,375
with 123 feet of frontage located on Sullivan Avenue, just north of the off-ramp
for Route 17 (Exit 100) in the Village and Town of Liberty. The land is
improved with a building which is divided into multiple uses, namely a one-story
auto service area, a three-story metal and masonry area used as office/storage,
as well as an area described as shed storage. The building was constructed in
1982. The setback is approximately 15 feet from Sullivan Avenue. The parcel is
located in a commercial zoning district.
The auto service facility contains three 14 foot high overhead doors. The
one-story auto service area is divided into a body shop and general
The three-story building is used primarily as office space on the first floor.
The second and third floors contain some finished and unfinished wood plank
flooring and sheetrock walls.
The steel shed addition contains 400 square feet.
The taking of the auto service facility parcel consisted of .02 acres or 872
square feet of asphalt paving. The building remained physically the same as
before the appropriation. Thus, after the taking the auto service facility
parcel was comprised of approximately .31 acres (13,503 square feet). (St's Ex
A, p 118).
Before proceeding to a discussion of highest and best use and valuation of
these parcels, the court believes a preliminary statement regarding the parties
respective positions will be beneficial in placing the rest of the discussion
into context. Claimant's position is based on the belief that the two parcels
should be viewed as one unit based upon a unity of use theory, thereby entitling
claimant not only to direct damages from each taking, but also consequential
damages as well. The State holds a contrary view. The State views the two
parcels as separate and distinct from one another and argues that the taking of
one had no impact on the other. The parties' positions are reflected in their
respective appraisals with claimant's expert valuing the two parcels as one
parcel, while the State's expert appraises the parcels separately.
Claimant is entitled to fair compensation for property appropriated by
Matter of Town of Islip [Mascioli]
, 49 NY2d 354, 360 ). To that
end the court is required to value the subject property according to its highest
and best use as of the date of vesting with the measure of the damages being the
fair market value in its highest and best use on that date. (Town of Islip
, 49 NY2d at 360; Matter of County of Clinton [Gagnon]
AD2d 898, 899 ; Gold-Mark 35 Assocs. v State of New York
, 210 AD2d
377 ). The fair market value is the price for which the property would
sell if there was a willing buyer and a willing seller under no compulsion to
either buy or sell. (Matter of Allied Corp. v Town of Camillus
, 80 NY2d
351 ; Gold-Mark 35 Assocs.,
210 AD2d 377).
and Best Use
Claimant's appraiser valued the gas
station and auto repair facility as an integrated economic unit. Claimant's
appraiser determined that the highest and best use of the subject properties in
both the before and after situations were as their current use, namely an
integrated auto and truck service center with fuel service. (Cl's Ex 14, p
The State's appraiser determined that the highest and best use of the gas
station parcel in both the before and after situation is as commercial
development as if vacant and for a gasoline service station as improved. (St's
Ex A, pp 49-50 & 82). The State's appraiser determined the highest and best
use of the auto repair facility parcel in both the before and after situation is
as commercial development as if vacant and for a service garage and body/repair
shop as improved. (St's Ex A, pp 49-50 & 119).
In examining the parties arguments relative to highest and best use, the court
finds the issue of unity of use to be the distinguishing factor. As previously
noted, claimant's expert found a unity of use between the gas station parcel and
the auto repair facility parcel from which his methodologies and valuations
flow, while the State's appraiser rejected any unity of use between the two
parcels. It is well-settled that in order for separate parcels to be treated as
one unit for purposes of determining consequential damages, if any, "[t]here
must be (1) contiguity, (2) unity of use and (3) unity of title or ownership
[citations omitted]." (
Erly Realty Development v State of New York
, 43 AD2d 301, 303-304 ,
34 NY2d 515 ).
Here, the court finds that the first and third elements are undisputed thus
leaving the second key element of unity of use. Claimant's position is that as
long as the two parcels are used for complementary purposes they need not have
been put to the same use. The court agrees and finds many cases in which unity
of use has been found on two separate parcels used for complementary purposes
such as an automobile dealership and a service station; a gravel pit and a
concrete plant; and a mobile home park and recreational use. (
Geary v State of New York
, 95 AD2d 965 , lv denied
605 ; Strong v State of New York
, 38 AD2d 241; Glazer v State of
, 54 AD2d 1077 ).
Consequently, based upon the foregoing, this court accepts claimant's
conclusion of a unity of use between the gas station parcel and auto repair
facility parcel. Thus, the court finds that the highest and best use of these
parcels is as an integrated economic unit in both the before and after
Mays, Inc. v State of New York
, 300 AD2d 545, 547 , lv
99 NY2d 511 ; Broadway v State of New York
, Ct Cl,
November 6, 2003, Ruderman, J., Claim No. 103220 [UID No.
In sum, this court finds that
claimant's expert's conclusion relative to highest and best use to be supported
by the credible evidence and, as such, rejects the State's appraisal which was
based on two separate unintegrated parcels. (Split Rock Partnership v State
of New York
, 275 AD2d 450 , lv denied
95 NY2d 770
As such, the court finds that claimant is entitled to direct damages as well as
consequential damages. Having accepted the claimant's analysis of highest and
best use as supported by the credible evidence, the court now turns to the issue
of valuation. (
Chemical Corp. v Town of E. Hampton
, 298 AD2d 419 ; Vassar
College v State of New York
, 294 AD2d 427 ).
Based upon the foregoing determination relative to unity of use, the court need
not review the State's appraisal which rejected the unity of use principle and
will address claimant's appraisal. (
Split Rock Partnership
, 275 AD2d 450). Additionally, since the court now
views these parcels as one integrated parcel, the court notes that the combined
square footage of these two parcels before the takings was 32,234 square feet as
set forth in the claimant's appraisal, while the combined takings equaled 3,057
(2,185 + 872), thus leaving a combined square footage after the takings of
29,177. (Cl's Ex 14, Summary).
There are three generally accepted approaches to determine the value of real
estate: (1) the cost approach; (2) the income capitalization approach; and (3)
the sales comparison approach.
Claimant's appraiser concluded the subject property had a $1,260,000 value in
the before situation. Claimant's appraiser found a value of $1,260,000 using
the sales comparison approach; a value of $1,333,000 using the cost approach;
and a value of $1,255,000 using the income approach. (Cl's Ex 14, p 50). The
court accepts claimant's valuation of $16.00 per square foot in the before
situation. Further, the court accepts claimant's appraiser's valuation of these
combined parcels in the before situation of $1,260,000 without adjustments.
Claimant's appraiser reaches a $695,000 value of the combined parcels in the
after situation. Claimant found an after value of $695,000 using the sales
comparison approach; a value of $686,000 using the cost approach; and a value of
$674,000 using the income approach. (Cl's Ex 14, p 79).
With respect to direct damages, the total square footage appropriated equals
3,057 square feet (872 square feet from Parcel 89 and 2,185 square feet from
Parcel 90). The court accepts the claimant's valuation of $16.00 per square
foot and thus finds the direct damages as a result of the taking equals $48,912
(3,057 x $16.00 per square foot). (Cl's Ex 14, p 80). Additionally, however,
the evidence at trial established that a portion of the paved parking area was
also appropriated. As such, the court finds that the damage to the paved
parking area resulted in a loss of $6,100 as set forth in the claimant's
appraisal. (Cl's Ex 14, p 80). Consequently, the total direct damages suffered
by the claimant as a result of this appropriation total $55,000 (rounded).
Next, the court must determine if there was any consequential damage to the
remainder of claimant's property as a result of the taking. It is well-settled
that when 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 value of the remaining property as a result of the
taking. 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 v State of New York
, 26 NY2d 385, 388
Here, both the State and claimant agree that some degree of severance damage
did result as a result of the taking of a portion of the claimant's properties
and some of the improvements thereon. The court has previously indicated that
it has accepted claimant's theory of a unified use of these parcels.
Furthermore, the court has determined that it accepted the claimant's combined
before value of $1,260,000. Based upon the evidence presented at trial, the
court is satisfied that the appropriation significantly raised the grade of
Route 52 and Sullivan Avenue leaving the northerly portion of the claimant's
property substantially below grade. The court is also satisfied that this
increased grade seriously hinders accessibility to the subject property for
commercial purposes particularly in bad weather winter conditions.
Additionally, the appropriation infringes on the fuel service island and canopy
so that the fuel service island and canopy now encroach on the State's
right-of-way. Furthermore, the court is satisfied that the auto service
facility and truck service facility have also been impaired due to a less than
adequate area on the property for maneuvering of service vehicles. For
instance, the setback from the body shop has been reduced to approximately 12
feet and the setback of the truck service center has been reduced to
approximately 21 feet. The setback of the auto parts store has now been reduced
to approximately 1 foot and prevents direct access to the retail portion of this
building complex without opening the front door onto the State's right-of-way.
Additionally, claimant has suffered declining fuel sales as well as declining
auto part sales in two of the businesses. Moreover, the truck retail service
center has now changed its operation from a retail use to a wholesale service
center due to lack of parking and access, due to difficult if not dangerous
conditions for retail customers when using the subject property.
In reviewing the claimant's appraisal report, the court finds the sales
comparison approach most helpful in determining an after appropriation value.
Based upon the comparables and a review of the same, the court is in agreement
that the value of the subject property after the taking is, in fact, $695,000.
Consequently, indirect damage to the remaining 29,177 square feet at $5.00 per
square foot totals $145,885, with damage and loss of improvements of $364,000
resulting in total indirect damages of $510,000 (rounded).
With respect to the cost to cure, increased drainage problems have resulted in
and around the property in front of the parts store and truck repair shop.
Standing water now accumulates in front of these portions of the subject
property and at times actually enters into the auto parts store. The catch
basin installed by the State in this area was installed at a level that does not
accept run off from this portion of the property. The correction of this
problem has been addressed in a report prepared by claimant's engineering firm
and damages related to this problem are addressed as a cost to cure. The court
accepts claimant's report and finds claimant is entitled to $12,700 as a cost to
cure the drainage problems created by this appropriation as a result of the
increased elevation of Sullivan Avenue. (Cl's Ex 14, Addenda, pp
SUMMARY OF FINDINGS
Recapping, the court finds the following damages:
Damages: $55,000 (rounded).
$48,912 ($16.00 square foot x 3,057 square feet taken)
$6,100 for pavement
Damages: $510,000 (rounded)
Land $145,885 ($5.00 square foot x 29,177)
Improvements taken: $364,000.
to Cure: $12,700
Thus, the total damages to be awarded to claimant are direct damages ($55,000),
indirect damages ($510,000), and a cost to cure ($12,700), for total damages of
Accordingly, it is the finding of the court that claimant is entitled to an
award of $577,700 with statutory interest thereon from the vesting date of
December 11, 1997 (date of appropriation) to June 11, 1998 (six months
thereafter), and from June 9, 1999 (date of filing of claim) to the date of
decision herein and thereafter to the date of entry of judgment for the
The award herein is exclusive of the claims, if any, of persons other than the
owners of the appropriated property, its tenants, mortgagees or 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 the claims, if any, for the value of or damage to
easements and 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 on which the court previously reserved or were previously undecided
are hereby denied.
ENTER JUDGMENT ACCORDINGLY.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
For ease of reference, the individual square
footage of each parcel is taken from the State's appraisal. However, the
parties' appraisals actually reflect a difference of .01 acres in total combined
square footage of the two parcels. Claimant's appraisal reflects a before
situation total of combined square footage of the two parcels of 32,234, while
the State's appraisal reflects a before situation total of combined square
footage of the two parcels of 32,670 (18,295 + 14,375). Ultimately, as will be
discussed below, the court will rely on the claimant's appraisal and the square
footage referenced therein.
The parties' appraisers agree on the amount of
square footage actually appropriated.
Selected unreported decisions from the Court
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