The Claimant was the owner of an improved parcel of land containing .856±
acres located in the Town of Greece, Monroe County, at 2331 West Ridge Road.
The Defendant acquired a portion of the property pursuant to Highway Law
§30 and the Eminent Domain Procedure Law of the State of New York. The
property was a restaurant facility but, at the time of the taking, was vacant
and had been for a period of time previous thereto. The Defendant acquired in
fee the portion of the property upon which the restaurant had been constructed
and some additional land as set forth on the appropriation map entitled
Rochester - West Greece, Map No. 80, Parcel 89. The fee taking left two
parcels, each of which abutted adjoining owners, one to the east and the other
to the west of the fee taking. Neither remaining parcel was contiguous to the
other. The Defendant acquired a temporary easement over the remaining two
parcels for the period of construction, as more fully described in Rochester -
West Greece, Map No. 234, Parcels 286 and 287 (Exhibit A, Appendix F)
The date of taking, as stipulated by the parties, was September 25, 2000, and
the claim has not been assigned by Claimant to any other tribunal or Court for
audit or determination. The Court accepts as accurate the description of the
subject as set forth in the deed from McCurdy & Company, Inc., to Claimant
dated May 14, 1998 and recorded in the Monroe County Clerk’s Office on May
15, 1998, in Book 9006, Page 448. The purpose of the taking was to relocate the
entrance to the Greece Ridge Mall.
Both appraisers found the highest and best use for the subject prior to the
appropriation was as a restaurant, and after the taking that neither of the
remaining two parcels could be developed, and thus had value only for sale to
Claimant purchased the property on May 14, 1998, with the stated intent of
operating it as a family restaurant but never did so since, at the time it
acquired title, the subject was under lease to T.J.’s Big Boy, a
restaurant chain. That company had closed the operation of the restaurant prior
to the date of purchase but continued to pay rent to McCurdy & Company, Inc.
(Claimant’s grantor) from the date of closing to the date of sale and
thereafter until Claimant bought out the lease in May of 2001 after T.J.’s
Big Boy (Elias Brothers Restaurants) declared bankruptcy. All of the
bankrupt’s rights in and to the subject were then assigned to Claimant
(Exhibits 2, 3 and 4).
The property abutting the subject to the south is a large parking area used by
the Greece Ridge Mall, an enclosed retail mall containing a large number of
retail shops, including a food court. On the north the subject abutted and had
access to West Ridge Road through a curb cut, and at one time had been enhanced
by a traffic signal allowing traffic to gain ingress and egress to the subject
for both eastbound and westbound traffic. Sometime prior to the taking, and
presumably after the restaurant had closed, the signal had been removed.
According to the record, the subject at the time of the taking did not have
direct access to the mall area.
At trial Defendant moved to strike Claimant’s appraisal pursuant to 22
NYCRR 206.21 (Uniform Rules for the Court of Claims). It appeared that the
Claimant filed an original and two copies of its appraisal with the Clerk of the
Court in accord with the provisions of the above section. One copy of the filed
appraisals apparently did not contain a grid showing the adjustments made by the
Claimant’s expert to the properties he utilized to determine the value of
Claimant’s property. When the Clerk of the Court exchanged appraisals
(NYCRR 206.21[d]), the copy of the appraisal lacking the grid was the one that
was supplied to the Defendant. At a conference prior to trial, counsel for the
Defendant made known to Claimant that the document which had been sent to him by
the Clerk did not contain the grid and that he would be objecting to the
introduction of the appraisal and its use. Claimant’s counsel, apparently
unaware of the alleged deficiency, thereafter provided to the Defendant the
missing grid several days prior to the trial. I note that the appraisal
received by the Court and the one marked as Exhibit 5 contained the grid, as
well as some other missing pages (all of which were provided in a timely fashion
to Defendant), and it is only the one sent to the Defendant that was incomplete.
Defendant’s motion is denied since I believe and find that it did not
prevent or prejudice counsel from conducting a thorough and probative
cross-examination of the Claimant’s expert. Claimant’s appraisal,
Exhibit 5, is therefore admitted into evidence.
At the commencement of the trial both parties stipulated that the income
approach would not be applicable in this case. Consequently Claimant’s
appraiser, Alan P. Kozlowski, would rely on the market data and cost less
depreciation approaches in arriving at his opinion of the subject’s value.
I have not relied on or accepted his explanation as it pertains to the use or
applicability of the cost approach to value the subject, since it has long been
accepted that such approach is primarily utilized to value special use
properties, and clearly the subject never was such a property. Under
cross-examination he had difficulty in defining what a special use property was,
i.e., when first asked the question he indicated that he was not familiar with
that term (Transcript, Vol. I, pgs. 148-149). Moreover, there was little
probative support for his opinion regarding the values he established for the
improvements and fixtures, or the rate of depreciation he utilized, and I find
it to be speculative at best.
Mr. Kozlowski, a licensed real estate appraiser, was retained by Claimant
approximately five years after the taking of the subject by the Defendant.
Consequently, he did not have the opportunity to view the subject prior to its
demolition, contrary to his certification in his appraisal that he had inspected
the property inside and out (see Exhibit 5, Paragraph 3 on the third from
last page). While he did inspect the properties relied upon in reaching an
opinion pursuant to the market data approach to land value, I find his answers
to questions by Defendant’s counsel pertaining to the sale located at 2561
West Ridge Road to be evasive and unacceptable. Attached to his data regarding
this sale is the deed he relied upon, and it clearly indicates that the
conveyance was of two separate parcels, each having its own tax ID number.
Equally clear is that one of the parcels was vacant commercial and the other was
improved. The total consideration for the two parcels was $660,000.00, yet Mr.
Kozlowski reports it as being $650,000.00 (see Exhibit 5, p. 10, albeit
contrasted with the grid immediately preceding the Cash Flow Data sheet);
however, this discrepancy is the least of my concerns regarding his use of this
sale. He also presents this comparable as a sale of vacant land only, which it
clearly was not, since the very documentation he included in his appraisal
disclosed that at least one of the two lots had an improvement on it (Exhibit
K). While he proffered an explanation of his thought processes in representing
it as vacant, I find it to be devoid of probative reasoning and evasive in spite
of the obvious information set forth on the documents he appended to his
appraisal. In light of his unconvincing testimony relating to this sale, I
decline to consider it in reaching a determination of the subject’s land
In addition, Claimant’s expert suggests a range of value for the land
alone at $325,000.00 to $650,000.00, relying on the above (Sale No. 4) and one
other, Sale No. 5. In light of my finding regarding Sale No. 4, Claimant is
left with just one sale of vacant land, identified as Sale No. 5 on its
The Defendant’s appraiser, Richard J. Stropp, III, on the other hand,
offered five vacant land sales, with adjusted values resulting in a range from
$244,344.00 to $592, 547.00. I note that Sale Nos. 1 and 2 occurred within a
few months prior to the date of vesting, and Sale No. 4 occurred in 1997. Sale
Nos. 3 and 5 occurred after the taking date. Consequently, I find that an
adjustment for time is required to Sale No. 4 to reflect the appreciation of
values for the subject property on West Ridge Road.
I note that the subject’s size was .856± acres, while each of these
sales ranged in size from 1.127± acres to 7.21± acres. I find that
Sale Nos. 1, 3 and 4 should be further adjusted upward to more realistically
reflect the size differential between them and the subject, especially when the
areas of these sales are at least twice the size of the subject. Further, I
find the subject’s location on West Ridge Road was superior to Sale Nos.
1, 2, 3 and 4 and merits a more positive adjustment to demonstrate
comparability. With regard to Sale No. 5, the negative adjustment made by
Defendant’s expert under the rubric of “location” is too
severe given his explanation and justification for the -30%. While it is true
this sale had frontage on West Ridge Road, it lacked direct access to it, unlike
the subject. Instead, access to this sale was gained by turning off West Ridge
Road at a signalized intersection and traveling a short distance of Bowman
Drive; turning left off Bowman Drive to Center Place Drive, from which you would
then turn left to gain access. In addition, this location is east of Route 390
and not in proximity to any enclosed mall such as the one the subject
Based on the foregoing, I find the subject’s land value to be
$441,500.00, prior to the appropriation, or $11.85/sq ft (R) ($516,000.00
I adopt as accurate the Defendant’s values for the fixtures and equipment
contained in the subject prior to and after the appropriation, since I find Mr.
Kozlowski’s testimony regarding these items to be unpersuasive and lacking
in foundation. Of course it must be remembered that Claimant’s appraiser
was not retained until 2005, and by that time the subject had been razed and he
was compelled, by his own admission, to try to reconstruct what was actually on
the premises. While I appreciate the circumstances he had to deal with, I
cannot accept his opinion, which I believe was by necessity speculative.
Defendant’s expert, it will be recalled, had the opportunity to inspect
the premises in his preparation of the project appraisal and thus was able to
testify persuasively regarding these items in greater detail.
I find the fair and reasonable value of these items to be $25,000.00 and the
total value for land and site improvements is $466,500.00 (R).
Claimant’s expert’s testimony regarding the sales he used in his
whole-to-whole market data approach was, in my opinion, vague and somewhat
unclear as it related to the adjustment required to be made to establish
comparability between them and the subject. Nonetheless, I find that his
testimony as a whole regarding these sales make them relevant and I have
considered them, along with the Defendant’s, in order to establish the
The sales relied upon by Claimant’s expert are set forth in Exhibit 5,
pages 9-11, and the adjustments he made to each are found on an unnumbered page
which I determined to be the 54th page of that document, excluding the letter
from Mr. Kozlowski to Claimant.
Regarding Sale No. 1, located at 3590 West Ridge Road, I find that there should
be an adjustment for time to reflect the period between the date of sale for
this property and the date of the appropriation. I base this on both
experts’ acknowledgment that the West Ridge Road area generally was
experiencing growth prior to the appropriation. Consequently, I have used a 4%
rate of appreciation for this factor for this sale which occurred on June 9,
1997. In addition, I find that its location on West Ridge Road is less
favorable than the subject’s but not to the extent found by Claimant.
While access to Sale No. 1 is not as direct as it was to the subject,
nonetheless that factor does not merit the significant positive adjustment as
found by Mr. Kozlowski, and I have reduced that to more adequately reflect the
His Sale No. 2, located at 2890 West Ridge Road, should be adjusted positively
for location. Because of its proximity to the subject and its comparable
access, based on the record before me I have reduced Claimant’s
expert’s adjustment for access by half.
Claimant’s Sale No. 3 at 2960 West Ridge Road is one that was also
utilized by the Defendant’s expert. Accordingly, I have given this sale,
and one other to be discussed later, greater probative weight than the others.
While this appears as Sale No. 3 on Claimant’s grid, the Defendant
indicates that within the body of the report at pages 9-10, it is in fact Sale
Again, a time adjustment was required,
and I have reduced Mr. Kozlowski’s adjustments for location and access to
reflect the impact of each based on the testimony of each appraiser.
I note that Claimant did not use the sale of the subject from McCurdy &
Company, Inc., to Claimant, even though it was within 2½ years of the
appropriation and a time adjustment would properly reflect its appreciation in
value. The Defendant’s appraiser did include it in his sales analysis as
Sale No. P-1, and I have given his treatment of this sale somewhat greater
On the other hand, I find that Mr. Stropp’s Sale No. P-3, which was
located a significant distance from the subject, in an adjoining county, had no
probative value. It was relatively near, but did not abut, Eastview Mall in
Victor, a larger shopping facility than the Greece Ridge Mall on West Ridge
Road. As a result, I have accorded it no weight. Furthermore, I gave little
weight to his analysis of his proffered Sale No. P-4, located in the Town of
Henrietta, and nowhere near a comparable commercial area such as the one
abutting the subject. I am not unaware that Sale No. P-4 was across from Monroe
Community College and that it fronted on Route 15A, but I am unconvinced that it
bears the degree of comparability required to make it probative in determining
the subject’s value.
In fact, I believe that Claimant’s sales for the most part had greater
comparability by reason of their proximity to the subject. It surprised me,
although I suppose it should not have, that Defendant’s expert, who
prepared the project appraisal for the West Ridge Road reconstruction, failed to
find more comparable properties in the general area of the subject and felt it
necessary to include these two sales in his analysis.
Based upon the proof in the record, my viewing of the area where the subject
stood (Court of Claims Act §12), the comparable sales I deemed to be
relevant to the subject, the testimony of the witnesses and the appraisals
submitted, I find the subject’s before value to be $897,500 as
Land - .856± acres @ $516,000.00 (R)/acre,
Improvements $ 12,500.00
Therefore, Claimant is awarded $764,480.00 for all damages, with appropriate
interest thereon from September 25, 2000, the date of taking, except as
suspended below. While the claim alleges service upon Claimant was completed on
or about October 2, 2000, the date stipulated was September 25, 2000, but the
record is unclear with respect to the manner of service (Transcript, Vol. II, p.
324). EDPL 512(B) provides that prejudgment interest may be suspended unless
the condemnee files a claim “within six months after accrual of such
claim, or within six months after personal service of the notice of acquisition
upon the condemnee, whichever is later.” As in Sokol v State of New
York (272 AD2d 604), where nothing in the record established the date of
personal service of the notice of acquisition on that claimant, interest on the
award should not be suspended pursuant to EDPL 514(B) for any period preceding
the filing of the claim.
Interest, however, was suspended by me in a so-ordered stipulation dated August
6, 2004, from the date of filing of the Defendant’s appraisal on January
29, 2004, until the filing of Claimant’s appraisal on March 30, 2005.
Accordingly, this award shall be inclusive of interest from the date of accrual,
September 25, 2000, until its suspension from January 29, 2004 until March 30,
2005, with interest resuming until the date of this decision, and thereafter to
the date of entry of judgment herein, pursuant to CPLR 5001 and CPLR 5002, and
subject to Court of Claims Act §19(4).
Claimant’s application in its post-trial memoranda for an additional
allowance under EDPL 701 must be rejected at this time; indeed such an award is
to be considered on the differential between the advanced payment (of which I
have no knowledge) and the Court’s award. Such application would
implicate the Defendant’s purported undervaluing of the subject’s
value, requiring the Claimant to bring an action, engage an attorney and incur
the expenses of a trial appraisal and expert testimony, all to satisfy the
constitutional requirement that the condemnor provide just compensation to a
condemnee. Thus, in order to make a claimant whole, an action under EDPL 701 is
available to reimburse a claimant for the costs of obtaining constitutionally
required recompense. Claimant’s argument is misplaced, however, when it
contrasts the values set forth in the trial appraisals prior to any award by the
Court. Moreover, relief under EDPL 701 was not sought or alleged in the claim,
and the statute only applies where “an award is substantially in excess of
the amount of the condemnor’s proof” and the Court may make such
further award, upon application with notice, an opportunity for a hearing and
affidavits of the condemnee setting forth the amount of expenses actually and
necessarily incurred. At the least, this application is premature.
The award to Claimant 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
Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims
LET JUDGMENT BE ENTERED ACCORDINGLY.