New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2007-013-513, Claim No. 105867


Case Information

JAMES P. ALLEN and BRENDA SCARLETT ALLEN, Individually and as Co-Trustees of the JBA Trust
1 1.The Court has amended the caption sua sponte to reflect the only properly named defendant herein.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the only properly named defendant herein.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, filed with the Clerk of the Court of Claims on April 8, 2002, arises out of an acquisition by the State of New York on April 16, 1999 necessitated by the failure of a portion of State Route 286, commonly known and hereinafter referred to as Blossom Road, in the Town of Penfield, Monroe County in February 1998. As a consequence of the road failure and danger to the public’s safety, the Defendant had entered upon Claimant’s property to restore and stabilize the road prior to the filing of the taking maps. Subsequent to the repair and restoration of the road, Defendant acquired in fee that portion of Claimants’ property needed to complete the project by filing the two maps affecting Claimants’ property entitled “Richs Dugway-Penfield Road, State Highway No. 408, Monroe County, Map 10, Parcel 10; Map 12, Parcel 13” respectively (see Exhibits 52, 53 and 54). Each taking was pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law of the State of New York. The maps were filed in the Office of the Clerk of the County of Monroe on April 16, 1999 and, as stipulated to by the parties, were served on Claimants on July 28, 1999, along with the Notice of Acquisition. The Court adopts as accurate the descriptions of the property taken as set forth on the aforesaid taking maps.

There is no dispute regarding the Claimants’ fee ownership of the property affected or the dates on which they acquired title to the lands they owned. I adopt as accurate the descriptions of the subject contained in the respective deeds, which are a part of Claimants’ appraisal (Exhibit 1, pgs. 62 to 67) and were stipulated to as being accurate. I also find that the total acreage owned by Claimants for purposes of this case to be 18.13± acres. The fee taking was a total of 1.317± acres as shown on the two taking maps, leaving Claimants with a remainder of 16.813± acres. The Court has viewed the property (Court of Claims Act §12[4]).

The Defendant contends that Claimants failed to timely file a claim for consequential damages, since that element of damages arose out of its early emergency entry on Claimants’ land for the purpose of stabilizing Blossom Road. This work on the subject property included removal of trees along the highway and down a slope leading to a private road known as Thomas Cove Road, the only means of access for at least seven residences; placing of riprap (stone) to shore up and support the slope or hillside; and the creation of a gabion wall at the toe of the slope to further add support to the hillside. The gabion wall was described as several baskets filled with rocks, placed side by side and wired to each other to create a wall (see Exhibits LL, MM and NN). This emergency work was done at the same time that work was being performed to stabilize and repair Blossom Road and the bank on the upward or westerly side of that highway. Defendant contends that all repair work involving Claimants’ land was completed by November of 1998 and the mapping of the land which Defendant planned to appropriate was done only after the work was completed. It points out that the maps (Exhibits 52 and 54) were completed on November 25, 1998 and December 2, 1998. They were subsequently filed in the Monroe County Clerk’s Office on April 16, 1999, and served on Claimants on July 28, 1999, along with the requisite Notice of Acquisition.

Defendant reasons that since all work involving Claimants’ property was completed in November of 1998, Claimants are charged with the knowledge of all of their severance/consequential damages as of that date. It further reasons that while the claim before me was filed in a timely manner so as to preserve Claimants’ claim for direct damages, it was not timely as it related to their claim for consequential/severance damages. Defendant relies on Albany Hous. Auth. v State of New York (107 AD2d 880) and 81 and 3 of Florida v State of New York (UID #2003-031-099, Claim No. 102175, Motion No. M-66375, Dec. 5, 2003, Minarik, J.).[2] Defendant’s reliance is misplaced, as I find that these cases are distinguishable from the one at bar and offer no support for Defendant’s contention.

Neither of those cases turns upon an emergency entry occasioned by the overwhelming exigent concern for the safety of the general public in its use of a public roadway. Further, each of the claims in the cited cases was served many years after the actual alleged interference with the owner’s use and enjoyment of its property occurred. In both cases those claimants alleged a continuing trespass as their theory of damages, acknowledging, in my opinion, that the claims were not compliant with §10(1) of the Court of Claims Act.

In this case the Defendant’s entry on Claimants’ property was occasioned by the collapse of a portion of Blossom Road just to the west of Claimants’ property. Defendant determined that in order to stabilize Blossom Road it would be necessary to perform work on the westerly portion of Claimants’ property which abutted the State’s right-of-way. This would ultimately impact Thomas Cove Road, a private road that runs east and west alongside Irondequoit Creek and rises to meet Blossom Road (Exhibits 55 and K). Thomas Cove Road services at least seven residences, including Claimants’, located along it. The proof at trial was that, despite Claimants’ multiple requests to learn the extent, nature and type of work that would be performed on their property, the Defendant’s engineers, out of necessity, were at best vague in response, since they were unsure of what work would be involved. In fact, one of Defendant’s engineers who worked on this project conceded that it was a design in progress to stabilize the easterly right-of-way of Blossom Road. There was no proof that the Claimants were ever informed or knew the precise extent of the taking until the maps were filed and served. To allow Defendant to prevail on its argument in cases having these unique set of facts[3] would in my opinion do violence to Defendant’s Constitutional mandate to fairly and justly compensate private citizens whose property is acquired for a public purpose. Therefore, Defendant’s application is denied, and I find that this claim was timely filed and, more particularly, that their claim for consequential damages is timely under these facts.

Claimants acquired their 18.13± acre property over a period of time, from the early 1980's to 1998. As noted above, the property was located to the east of Blossom Road and north and west of Irondequoit Creek in the Town of Penfield. It was covered by several Environmental Protection Overlay Districts (EPODS) relating to floodways, wood lots and water courses. Claimants contend that it had been their intent to subdivide their property into multiple lots for sale and construction of single-family residences. In fact, in October 1987 Claimants submitted a plan to the Town Planning Board entitled “Mill Pond Estates” (Exhibit 2). It called for a subdivision of their property into 22 home sites, which was resisted by other home owners. One concern raised at the public hearing was the increased traffic over Thomas Cove Road and its access to Blossom Road.

It should be noted that a portion of Thomas Cove Road is laid out over lands owned by the County of Monroe and Blossom Development Associates at or near its junction with Blossom Road. The portion of the road over county lands was bounded on the north by a rather steep hill owned by Claimants and on the south by Irondequoit Creek. The lands of Blossom Development Associates include a house erected adjacent to the road and south of the intersection. At one point Penfield officials recommended that Claimants contact Blossom Development Associates and the owner of the house located on its property to discuss the possibility of altering the alignment of Thomas Cove Road to accommodate the increased traffic. Claimant James Allen did so, with no apparent success (Exhibit 13). The meetings did not result in any positive response primarily due to issues of cost and liability (Exhibit D). There is nothing before me that indicates that there had been any change in the positions of the respective entities between June 1989 and February 1998, when Blossom Road was compromised.

Claimants did continue to prepare their property for the development and sale of building lots, but it was scaled down from the original 22 lots to 5. An integral part of the plan was the Mill Pond located on the property which would be a focal point for the development. It had been neglected for years, and Claimants proposed to remedy it by dredging and redesigning the pond. Over a period of several years various plans for the remediation and redevelopment of the pond were submitted to Federal, State and local authorities to secure all required approvals. The requisite approval was received in 1995, and once acquired, limited studies were performed on the pond up to the date of the occurrence of the damage to Blossom Road. Despite obtaining the permits regarding the redevelopment of the pond in 1995, Claimants had not done any work with the pond between the time the plan was approved and the date of the collapse of Blossom Road.

In addition, Claimants installed other improvements on the property, such as a water line, a fire hydrant, a lateral sewer to Claimants’ house and manhole drops adjacent to the property to be developed, anticipating approval of their development plan by the Town of Penfield. Claimants also had undertaken the removal of brush, trees and debris from the property to further define the building lots they intended to sell.

While Claimants were making the various infrastructure improvements and securing permits for Mill Pond, there was no proof that they had any further written or documented communication with the Town, County or State with regard to the proposed subdivision or concerns involving the junction of Thomas Cove Road with Blossom Road. Moreover, Thomas Cove Road was a private road, and by Penfield Town ordinance the number of residences permitted along private roads is limited to five. Since there are at least seven residences already in place on Thomas Cove Road, the Town would require one of two things to occur: (1) that the road and right-of-way be upgraded and widened to 60 feet and that it comply with the minimum turning radius necessary for emergency vehicles; and (2) that if it remained a private road, a homeowners association would have to be created which would have to spell out the requirements and obligations that the individuals owning property abutting the road would have to assume and apparently be subject to approval by the state, county and town. There is nothing before me to establish that Claimants had any contact with the State, Town, or other property owners regarding either dedication of the road or the creation of a homeowners association from mid-1989 up to the collapse of Blossom Road in February 1998.

While there was some testimony that the issue of the reclamation pond had to be resolved first, the issue of what to do regarding Thomas Cove Road was also a critical concern. I am aware that Claimant James Allen viewed this project as one that would come to fruition over an extended period of time. I accept that, thus somewhat blunting the Defendant’s argument that for a significant period of time there had been no written record of communication between Claimants and the Town.

After the collapse of Blossom Road, the Defendant entered upon the property and began to remove and denude the slopes in preparation for the eventual placement of dirt and rock to add stability to the slope adjacent to the road in an area that was intended to be part of the proposed development, and more particularly in the area that had a view of the pond. In addition, Defendant removed trees and redesigned the embankment in the area where Claimants’ property abutted Thomas Cove Road and placed dirt and rock on the slope for stability. It also erected a retaining gabion basket wall along the base or toe of the slope to the area where an entry roadway into the Claimants’ property existed. The wall did not encroach on this road and/or driveway.

After the stabilization work had been completed by Defendant and the extent of the acquisition was known, Claimants determined that they would be unable to comply with the Town’s requirements for dedication of the road relating to ingress, egress and width, and they abandoned any plans for development of the property. In late 2000 they sold all their property, including their home, for $515,000.00.

Interestingly, both appraisers agree that the highest and best use of the subject prior to the appropriation was for residential development, but differed on the number of permissible lots. Defendant’s expert limited it to two to three lots (Exhibit A, pgs. 31-35), while Claimants’ expert, after allocating four acres to Claimants’ improved home site, merely states that the remaining 14± acres could be subdivided ( Exhibit 1, pgs. 16-17). However, he testified that he believed that there could be from five to eight or ten lots developed on the acreage.

I accept the opinion of both experts that the subject’s highest and best use prior to the appropriation was for residential development consisting of three to five sites.

Both appraisers relied on the market data approach to fix the subject’s value, both in the before and after analyses of the subject. Claimants’ expert, however, broke out the Claimants’ improved parcel and four acres and found that it had a before value of $413,000.00, and I find that to be fair and reasonable.

With respect to the remaining 14± acres before the taking, Claimants’ appraiser found its value to be $25,000.00 per acre. He came to his conclusion by analyzing four sales, only one of which was in the Town of Penfield. Sale No. 1, located in the Town of Perinton and consisting of 7± acres, sold in October 1999, and in my opinion differed from the subject in several significant aspects, including better and safer accessibility. It had approval for 12 lots and was not encumbered by any EPODS. Sale No. 2, located in the Town of Penfield, also had received approval for development of 15 lots, and its access was not encumbered by problems similar to the subject. Sale No. 3, located in the Town of Pittsford, had received approval for a subdivision of 36 lots on the north side of Route 31and three large lots on the south side. This property did not have access problems from Route 31 on the north or south that were in any way similar to the subject. Sale No. 4, consisting of five acres, was located in the Town of Irondequoit, had been acquired in 1991, and was subsequently subdivided into five lots. I have given little weight to this sale. With regard to the other sales, I made further positive adjustments to Sale Nos. 2 and 3 for time, and reduced the adjustments for location for Sale Nos. 1 and 2, and increased the adjustment for plot size to reflect the subject’s smaller size.

The Defendant’s expert determined that the improved portion of the subject property contains Claimants’ residence and an abandoned structure, which had not been affected by the appropriation and he did not value the residence or allocate specific acreage on which Claimants’ residence was created. Rather, he determined the value of the entire 18± acres as if vacant. He felt that the entire subject property had unique physical features, specifically mentioning the Mill Pond, and variable topography with wooded acreage offering seclusion and a noise and dust buffer.

In arriving at the before value, Defendant’s appraiser considered sales of seven parcels of vacant property. After making what he determined were appropriate adjustments to these sales, he concluded the subject’s before value to be $10,000.00 per acre for a value of $180,000.00. I note that Sale Nos. L1, L2 and L6 were located in the Town of Perinton, Sale Nos. L4, L5 and L7 were in the Town of Penfield, and Sale No. L3 was in the Town of Brighton. I placed less weight on Sale Nos. L1 and L7, as the former sale occurred in October 1991 and the latter sale occurred in June of 2003. I find that further adjustments should be made to Sale Nos. L2, L3, L4, L5 and L6 to more accurately reflect the subject’s value. As a consequence, Sale No. L2 should be increased by $675.00 per acre to more accurately reflect economic trends and differences between it and Claimants’ property. In addition, giving consideration to the “utilities” category, Defendant’s expert did not, in my opinion, give adequate consideration to the subject’s superiority since it possessed all public utilities, while Sale Nos. L2 through L5 had no sanitary sewers available. Based on the record before me, I have increased that adjustment upward to $2,100.00 per acre. I also find that Defendant’s adjustments for topography are somewhat exaggerated, and accordingly the negative adjustment is modified to more accurately reflect the difference between the subject and Sale Nos. L3, L4, and L5. Finally, in order to reflect the superiority of Claimants’ property over the proffered comparable sales utilized by the Defendant’s expert in analyzing his sales, I have increased the sum allocated by him under the category of view/coverage.

I further find that if the property were to be subdivided, there would be carved from the acreage the Claimants’ residence, and accept the fact that allocating four acres to accompany that improvement is reasonable.

I find the subject’s value prior to the appropriation, based upon my analysis of both experts’ testimonies and the comparable sales offered by each, and weighing further adjustments to each of the sales indicated above, to be $14,500.00 per acre for 14.13± acres, or $205,000.00(R). I further find the subject’s total value prior to the appropriation to be $618,000.00 as follows:

Residence and Four Acres $413,000.00

14.13± Acres Vacant Land $205,000.00

Total Value $618,000.00

While both appraisers concluded that the acquisition of Claimants’ property by the Defendant negatively impacted the remaining acreage, they disagree with respect to the degree that the property has been consequentially damaged. Bear in mind that post-trial the Defendant raised for the first time the timeliness of any claim for this type of damage, and since I have dealt with that argument above, there is no need to address it further. What is apparent is that the subject did incur a diminution in value caused by a further restriction in access, loss of privacy, loss of a buffer from the noise on Blossom Road and loss of wood coverage. Claimants’ appraiser utilized four new sales of vacant land in the Town of Penfield to determine the subject’s value after the taking, while the Defendant’s expert relied on the same sales he considered in fixing the before value of the subject.

Not coincidentally, after analyzing these sales the Claimants’ expert fixed the subject’s after value at $515,000.00, the actual sale price of the property when sold in July of 2000. He determined that the value of the residence and four acres was unaffected by the appropriation, but the remaining vacant land, or 12.813± acres, now had a value of $8,000.00 per acre. One might be inclined to believe that he worked backwards to ensure that the result he came to fit the exact purchase price, and be somewhat skeptical of his methodology in this part of the case. In any event he fixed Claimants’ total damages as follows:

Direct Damages

Land Taken - 1.32 Acres @ $25,000.00/Acre $ 33,000.00

Consequential Damages

Land Damaged - 12.81 Acres @ $17,000.00/Acre $217,770.00

Total $251,000.00(R)

The Defendant’s expert did not consider the subsequent sale of the subject in fixing after value, but instead estimated that the negative impact of the appropriation resulted in a diminution in value to the land of 25%, as a consequence of which he fixed the after value at $9,000.00 per acre or a total after value of $150,600.00 for the remaining 16.733± acres. He fixed total damages as follows:

Value of Land Taken - 1.317± Acres @ $10,000.00/Acre

$ 13,200.00(R)

Severance Damage - 16.733± Acres @ $1,000.00/Acre

$ 16,700.00(R)

Total $ 29,900.00

I find that the best measure of the subject’s value after the appropriation is in fact the price it sold for in July 2000. I further find, as both experts concluded, that the residence and four acres constituting the Allens’ residence was not affected by the taking. Therefore, its value remains unchanged, and I fix it at $413,000.00 after the taking. Since the sales price is the best evidence of the subject’s after value, a simple computation of subtracting the value of the residence from the sale price results in a value attributable to the remaining land, consisting of 12.813± acres, of $102,000.00, or $8,000.00(R) per acre after the taking. This results in a total damage to the subject as follows:

Direct Damages

1.317± Acres @ $14,500.00/Acre

$ 19,100.00(R)

Consequential Damages

12.813± Acres @ $6,500.00/Acre

$ 83,300.00(R)

Rounded to: $102,400.00


Therefore Claimants are awarded $102,000.00 for all damages, direct and consequential, with appropriate interest thereon from April 16, 1999, the date of taking, until January 28, 2000, six months subsequent to the date of personal service (see Sokol v State of New York, 272 AD2d 604), and from April 8, 2002, the date of filing of the claim, to the date of this decision, and thereafter to the date of entry of judgment herein, pursuant to CPLR 5001 and CPLR 5002; EDPL §514; Court of Claims Act §19(1); and subject to Court of Claims Act §19(4).

The award to Claimants herein is exclusive of the claims, if any, of persons other than the owner of the appropriated property, its 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 property 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 now denied. To the extent that Claimants have paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).


September 20, 2007
Rochester, New York

Judge of the Court of Claims

  1. [2]Decisions and selected orders of the New York State Court of Claims are available on the Internet at
  1. [3] Neither party provided me with any case having a fact pattern similar to this case, and my research has revealed no line of cases that deal with emergency de facto actions by the Defendant.