New York State Court of Claims

New York State Court of Claims

MANN v. THE STATE OF NEW YORK, #2008-044-007, Claim No. 109113


Claimant awarded $436,000 plus statutory interest in appropriations claim.

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):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely served and filed claim for damages resulting from the appropriation of real property (the property) owned by claimant[1] and located in the Town of Mamakating, Sullivan County. The premises were appropriated in proceedings entitled Bloomingburg-Monticello, Part 1, S.H. No. 5510, Sullivan County, Map No. 275, Parcel No. 445, pursuant to the pertinent provisions of the Highway Law and the Eminent Domain Procedure Law. The parties agree that the date of the taking was March 7, 2003. The claim was filed on May 5, 2004 and duly served.[2]

The Court has viewed the property, as required by Court of Claims Act § 12 (4). This claim has not been assigned or submitted to any other court or tribunal for audit or determination.

At the time of the taking, the property was comprised of approximately 1.84 acres, with improvements consisting of a full service gasoline station, repair shop and towing station, with a small convenience store and impound lot annexed. The Court adopts the appropriation maps and descriptions contained therein, and incorporates them by reference. The parcel is located at the interchange of State Route 17 (Route 17) and U.S. Highway 209 (Highway 209), abutting the westbound access ramp to Route 17, and across the road from the westbound exit ramp from Route 17. Highway 209 is a north-south artery which runs from Kingston, New York to Stroudsburg, Pennsylvania. Route 17 is a four-lane limited access highway in this area, but is incrementally being converted to an interstate highway along portions of its route.

Claimant purchased the property in 1987. At that time, the property contained an abandoned gasoline service station. After the purchase, he obtained a special use permit and site plan approval from the Town of Mamakating, and completely renovated the building, installing new doors, windows, septic system, lighting, bathrooms, gas pumps and storage tanks. He eventually added canopies and a 100-foot-high sign for the station. He also installed curbs and new blacktop, and tiered the upper, back portion of the property in order to display construction equipment he had for sale. In 2001, claimant again renovated the station to comply with new Federal requirements for gasoline stations, installing tanks with double-walled piping and underground monitoring equipment. Claimant testified that, at the time of the taking, he was in compliance with all relevant Town permitting requirements.

Kenneth Gardner II, a certified real estate appraiser, prepared an appraisal and testified on behalf of claimant.  At trial, Gardner stated that the most significant characteristic of the property was its visibility from and direct access to Route 17. He said that the highest and best use of the property was for commercial use. In his appraisal, he analyzed the value of the property by using both the sales comparison approach and the income capitalization approach, and then used the cost approach as a general check on the results from the first two methods.

In his sales comparison analysis, Gardner focused on sales of three similar properties at or near interchanges on Route 17. All three of these properties were located within 15 to 20 miles of the appropriated parcel, and were all in Sullivan County. After comparing these properties with the parcel at issue, and making appropriate adjustments for improvements, location and condition, Gardner arrived at a valuation of the subject property of $445,000. He assigned the building and site improvements a value of $215,000, and a land value of $230,000.

His first comparable sale (Sale #5[3]) was a property located at a Route 17 interchange in Sullivan County, which was improved with a 3-bay auto service garage with fuel service that was expanded after the sale. At trial, defendant's counsel questioned Gardner's Sale #5, noting that the adjustment made to the value for location alone, in order to make it comparable to the subject property, was $250,000, or one-third of the purchase price. In fact, after net adjustments, the indicated comparable value of that sale was ± 41% lower than the sale price. As noted in Nichols on Eminent Domain:
The concept of using comparable sales to indicate a value for the subject property presupposes similarities in the characteristics and components of the comparables and the subject. It would appear axiomatic then that the greater the number and percentage of adjustments, the less comparable the property and the more vulnerable the appraisal opinion based thereon. If the net adjustments to the comparable sale equals 30% or more of its unit price to make it equal to the subject property, then it would seem . . . that such comparable sale has been rendered no longer comparable and of no probative value in estimating the market value of the subject (7A Nichols, Eminent Domain § G13.04 [3d ed]).

Accordingly, the Court finds that Sale #5 simply was not comparable.

Gardner's second comparable sale (Sale #6) was a former gasoline station later used as a convenience store. This property was located at an interchange with a secondary road which was accessible to eastbound traffic only. This sale was the same as defendant's Sale #4.[4] The same problem occurs with this sale as with Gardner's previous sale, however. The sale price of this property was $230,000, and after adjustments to render it comparable, Gardner values it at $444,125, or nearly double the original purchase price. Again, the adjustments made by Gardner are so substantial by comparison to the purchase price (as are the per-square-foot adjustments made by defendant’s expert in his analysis of this property[5]) so as to render this sale not comparable as well, in the Court's view.

Gardner's third and final comparable sale was an equipment sales and service facility with exposure to Route 17, but without direct access thereto and with no fuel sales. The Court finds that the substantial cost of equipping a parcel for fuel sales (as testified to by claimant), in light of the requisite standards imposed in both Federal and State regulations, is such that the lack of fuel sales at this location also renders it not comparable.

Gardner's income capitalization valuation of the property was in part based on the number of gallons of gasoline sold at various convenience store locations. Gardner testified that, in his opinion, this method (known as gallonage) is the most appropriate way to value a fuel service facility, because that is the first factor that anyone seeking to purchase this particular property would examine. However, as defendant's counsel accurately noted, New York courts have not readily accepted gallonage as the basis for determining valuation in appropriation proceedings (see Kozecke v State of New York, 34 AD2d 599 [1970]; Coldiron Fuel Ctr., Ltd. v State of New York, Ct Cl, Mar. 27, 2003, Lebous, J., Claim No. 102518 [UID # 2003-019-004], affd 8 AD3d 779 [2004]). In Kozecke, the Third Department noted that "[t]here can be no doubt that to some extent the number of gallons sold is dependent upon the management of the premises...and is beyond the control of the fee owner" (Kozecke v State of New York, supra). Accordingly, the Court has disregarded this income capitalization portion of Gardner's analysis and any conclusions based thereon.

Likewise, the Court declines to consider Gardner's cost approach.[6] As defendant accurately notes, the cost approach is appropriately used when a property may be categorized as a “specialty” (see Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236, 239-240 [1977]; Matter of Saratoga Harness Racing v Williams, 91 NY2d 639, 645-646 [1998]). Both appraisers agreed that the highest and best use for the improved land would be a gas station, convenience store and auto repair business. There is nothing unusual about those uses, or about the location of the property. Accordingly, this property does not qualify as a specialty, as it has “features which, while rendering the property suitable to the owner's use, are not truly unique to his business but, in fact, make the property adaptable for general industrial use” (Great Atl. & Pac. Tea Co. v Kiernan, supra at 240).

Defendant also objects to claimant's appraisal because Gardner used whole dollar adjustments to the comparable sales values, rather than making adjustments per square foot, and does not arrive at a “per square foot” valuation of the subject property in his sales comparison approach. The Court notes that a “per square foot” valuation might have assisted in the Court's analysis, but there is no particular requirement that the appraisal be performed in this fashion. However, in light of the Court's findings above, this issue is not relevant.

Defendant's certified appraiser, Robert Congdon, Jr., MAI, RM, prepared an appraisal and testified on defendant's behalf. He arrived at a valuation of the taking in the amount of $375,000. He based this figure on the cost and direct sales comparison approaches. He did not use an income approach due, he said, to the lack of rentals in the area and the absence of purchase or

construction of like facilities for rental income. He apportioned his valuation in the following manner:

Land $ 83,000

Land Improvements $159,100

Building $132,900

As previously noted, defendant objected to claimant's appraiser's use of the cost approach in valuing the property, because the property does not qualify as a specialty. The Court declined to consider claimant's appraiser's cost analysis for this reason, and likewise declines to consider defendant's use of a cost analysis as well.[7]

Congdon's report and testimony both referenced his belief that the use of the property as a gas station, auto repair and convenience store was a pre-existing non-conforming use,[8] and further that the uses of equipment sales and storage were not legally permissible. His determination regarding the legality of these uses was based upon a schedule contained in his appraisal which set forth permitted uses in the Town Center (TC) zoning district of the Town of Mamakating, and which noted that auto repair and gas stations required a special use permit, and made no provision for equipment sales (thus presumably rendering those a non-permitted use).[9]

This assertion was substantially undermined, however, by claimant's production of another schedule pertaining to the General Business (C) zoning district. This schedule also listed auto service stations and used car sales lots as requiring special use permits, but listed motor vehicle, trailer, boat or farm equipment sales and convenience retail stores as being permitted uses as of right. A copy of the survey obtained by claimant during the course of his applications to the Town for various zoning approvals, and entered into evidence, indicates that the property was zoned “C” - General Business District. Claimant also supplied a certified copy of his license for operation of the auto parts business and junkyard, and testified without contradiction that he had obtained the requisite special use permit for the automotive service station (which was born out by documentation annexed to defendant's appraisal).

Documentation annexed to defendant's appraisal indicated that claimant and the Town of Mamakating had had a dispute in 2000 regarding claimant's storage of unlicensed, unregistered vehicles on the property. However, that documentation also indicates that the matter was resolved in 2001. That dispute clearly had no bearing on the numerous other uses to which claimant put the property, all of which the Court finds to have been in compliance with the various zoning regulations and requirements as presented to the Court.

Congdon also placed a considerable amount of weight on his determination that the rear portion of the property had no legal access. He contended that claimant was accessing that part of the property by trespassing across State land. The Court finds Congdon's determination in this regard to be completely without merit. While one of claimant's two means of access to the rear of the parcel may - or may not - have been across State land, it is readily apparent from both pictures taken at the time of the appropriation and from claimant’s testimony that the back portion was directly accessible from the bottom part of the property, and the rear area was not landlocked.

Congdon's erroneous assumption regarding access1[0] appears to have had a direct and substantial impact upon his valuation of the land value he assigned the property. He developed a site value using an analysis of sales of comparable land (that is, sales of real property which he perceived to be similar to the subject property, although undeveloped or developed with improvements substantially differing from the subject property).

Based on this analysis, he valued the front portion of the land - 34,529 square feet - at $2.40 per square foot, based on comparable sales. He then assigned a contributive value for the rear portion in the amount of $22,800, based on a “comparable” sale of landlocked land. While the value thus assigned to the rear portion was clearly not based on a comparable situation, Congdon exacerbated the matter by failing to add the amount allocated to the rear portion ($22,800) to that allocated to the front portion ($2.40 x 34,529 = $82,869, rounded up to $83,000). Instead, he inexplicably adjusted his square foot value of each of the comparables by $22,800. He acknowledged that if he had valued the entire parcel at $2.40 per square foot, the resulting land value would have been ± $192,571.

Congdon also performed whole-to-whole sales comparisons (in other words, sales of properties with similar development characteristics). At trial, he testified that he gave all the sales approximately equal weight. Sale #2 was located in Steuben County, approximately 275 miles away. Sale #3 was located in Broome County, approximately 150 miles away.1[1] No showing was made with regards to Sales #2 and #3 that the marketing areas or demographics were similar to those of the subject property. Such a showing would not only have been appropriate, but necessary in order to use the properties as comparables, given the relatively proximate location of the subject property to the downstate area and the vastly differing natures of the economy between the two locations. Omitting these sales, Congdon's range of values per square foot was $216.01 (Sale #4) to $248.10 (Sale #1). The value he assigned to the subject property was $238 per square foot (defendant's exhibit A at 65).

The parties' appraisers differed in their conclusions of the number of square feet contained in the building on the subject property. Claimant's appraiser, Gardner, testified that he actually measured the building, and arrived at a total of 1,363 square feet. However, he did not provide a sketch, layout or individual dimensions in his appraisal, nor could he testify to the dimensions. In contrast, defendant's appraiser Congdon lists a square footage for the building of 1,590, which did not include a tool shed of approximately 175 square feet. However, Congdon's appraisal contains a sketch indicating the exact measurements of each wall of the building. These measurements and the building layout and shape appear to directly correspond with the survey prepared by defendant for its appropriation. The Court accordingly accepts 1,590 square feet as the size of the building.

Claimant is entitled to fair compensation for property appropriated through the process of eminent domain (Matter of Town of Islip [Mascioli], 49 NY2d 354, 360 [1980]). To determine that fair compensation, the Court must value the subject property according to its highest and best use as of the date of vesting, with the measure of damages being the fair market value of the property in its highest and best use on that date (id. at 360; Matter of County of Clinton [Gagnon], 204 AD2d 898, 899 [1994]; Gold-Mark 35 Assoc. v State of New York, 210 AD2d 377 [1994]). The fair market value is the price for which the property would sell if there was both a willing buyer and a willing seller, with neither under any compulsion to buy or sell (Matter of Allied Corp. v Town of Camillus, 80 NY2d 351 [1992]; Gold-Mark 35 Assoc. v State of New York, supra).

There is no dispute between the parties that the highest and best use as of the date of vesting was as a gas station, convenience store and auto repair business. Further, based upon the foregoing discussion, the Court finds defendant's Sale #1 to be the most appropriate comparable sale presented. This property, containing a gas station and convenience store, sold for $357,000 in August 2000.[2]2 It was located on a State Highway in Fallsburg, which is also in Sullivan County. It had 97,574 square feet of usable land (relatively similar in size to the subject property’s 80,238 square feet). The building size (not including the metal building) was 1,680 square feet, as compared to the 1,590 square foot building on claimant’s property. Sale #1 also had two dual-sided MPDs, each with three product capabilities, compared to claimant’s three dual-sided MPDs with two hoses. Sale #1 had two underground tanks, with 6,000 gallon and 1,500 gallon capacities, and a 20 x 30 canopy. The subject property had two 6,000 gallon tanks, one 4,000 gallon tank and one 2,000 gallon tank, as well as two 26' x 24' canopies. Sale #1 did not contain service repair bays. Conversely, however, the entire building on the premises of Sale #1 was devoted to convenience store sales, whereas less than one-third of the building at the subject property was used for retail sales, and the rest for the repair shop. Congdon adjusted for this, calculating the finished portion of the subject property as being 30%, and that of Sale #1 at 100%, resulting in an adjustment of -$17.50/sq.ft. to the adjusted square foot value of Sale #1.

Congdon estimated the condition of the subject property as average to good, and that of Sale #1 as average, and made an appropriate adjustment (+$28.04/sq.ft.) therefore. He also made an appropriate adjustment (+$35.18) for the difference between the properties’ site improvements (estimated for the subject property at $159,100 and for Sale #1 at $100,000).

The final adjustment made by Congdon with regard to Sale #1 pertained to the estimated land value of the two properties. As previously discussed, Congdon improperly estimated the land value of the subject property at $83,000, due to his erroneous opinion that the rear portion of the parcel was landlocked. As shown in Appendix A herein, the Court has revised his estimated land valuation of $83,000, to arrive at an estimated land value of $127,000. This results in an adjustment of +$16.07 per square foot to Sale #1, rather than Congdon’s adjustment of -$10.12, for a total adjusted value per square foot of $274.291[3] (as opposed to Congdon’s adjusted value per square foot for Sale #1 of $248.10). This results in a value for the subject property of $436,000 ($274.29 x 1590 sq.ft., rounded).

Accordingly, it is the finding of the Court that claimant is entitled to an award of $436,000 with statutory interest thereon pursuant to Court of Claims Act § 19 (1) from the vesting date of March 7, 2003 to the date of decision herein,1[4] and thereafter to the date of judgment for the permanent appropriation.

The award to the Claimant herein is exclusive of the claims, if any, of any persons other than owners of the appropriated properties, their 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 properties 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.

The Chief Clerk is directed to enter judgment in favor of Claimant as set forth above and to the extent that Claimant paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Let judgment be entered accordingly.

December 24, 2007
Binghamton, New York

Judge of the Court of Claims

Appendix A

Revised* Site Valuation - Defendant’s Appraisal
Sale #1
Sale #2
Sale #3
Sale #4
Sales Price


xs land $20,000
Assemb. $40,500
Building $(10,000)
Adj. Per Sq. Ft.

$ 1.00
$ 8.51
Location & Utility Adj.

$ .20
$ .11

$ (.43)
Size (SF) - Congdon
Size (SF) - Court*
$ -
$ .23
$ (2.55)
$ .22
Excess Land -Congdon
Excess Land - Court*
$ 0
$ 0
$ 0
$ 0
Total Net Physical Adj.
- Congdon
- Court*

$ .20

$ .34


$ (.21)
Adjusted Price/Sq.Ft
- Congdon
- Court*






Size (SF)
- Congdon
- Court*




- Condon
- Court*





* These lines have been revised by the Court.

Defendant’s estimated land value has been revised by the Court to reflect that the entire subject parcel is usable, and that the rear portion is not landlocked. This has been done by removing the adjustments made to the comparables for the “excess” (landlocked) land on the subject parcel, and by recalculating the size adjustment, in the same manner performed by Congdon, to reflect the actual size of 80,238 square feet, rather than the size he used, 34,529 square feet. This has resulted in an adjusted price per square foot of $1.58 (Congdon gave all sales comparable weight), rather than the price of $2.40 used by Congdon. However, when applied to the 80,238 square feet on the subject parcel, the revised estimated land value is $127,000 (rounded), rather than $83,000.1[5]

[1]. There is no dispute regarding claimant's fee ownership of the property.
[2]. A prior “claim” was filed and served, but due to defects in the verification was treated as a nullity by the parties. Accordingly, all references herein are to the claim filed May 5, 2004.
[3]. Sales #1 through #4 were used in Gardner’s Cost Approach analysis, discussed infra.
[4]. Defendant notes in its post-trial memorandum that Gardner neglected to include 336 square feet of warehouse area in his calculation of a square-foot value pertaining to that sale. This accounts for the difference in pre-adjustment square-foot valuation between Gardner's $157.43 per square-foot valuation and defendant’s expert’s valuation at $127.99 per square foot.
[5]. Defendant’s expert adjusted this property by $88.02 per square foot, increasing its value by approximately 69% (see defendant’s exhibit A, at 64).
[6]. In fact, claimant's counsel concedes, in his post-trial memorandum, that Gardner did not rely this approach to value (claimant’s post-trial memorandum at 5).
[7]. Defendant's appraiser acknowledged in his report that “the Sales Comparison Approaches was [sic] estimated to be the most appropriate approach to value” (defendant's exhibit A at 75).
[8]. Despite this assertion, however, the Court notes that Congdon did not provide any adjustment increasing the value of the parcel due to the non-conforming use, as is required by law (see Wholesale Coop. Meat Dealers Assn. v State of New York, 45 AD2d 14 [1974]).
[9]. Congdon admitted that he did not consult with the Town Attorney to determine whether claimant's use was actually non-conforming.
1[0]. Congdon acknowledged that his first viewing of the property was years after the appropriation, and that the site conditions might have changed over that time.
[1]1. Additionally, Sale #3 did not have service bays, and was 85% finished retail, versus the 30% finished retail of the subject property.
1[2]. The total sales price was $600,000, but the real estate allocated portion of the sale was $407,000, with the remainder allocated to business value, inventory and movable furniture, fixtures and equipment (FF&E). Congdon subtracted the $50,000 estimated contributory value of a metal building on the premises from the land value to arrive at his sales price. The metal building was being used for owner’s storage and commercial rental.

1[3]. This number was obtained by taking Congdon’s adjusted value of $248.10, adding the $10.12 he deducted for land value, plus the $16.07 per square foot obtained by dividing $27,000 (the difference between the subject property’s revised land value of $127,000 and Sale #1's estimated land value of $100,000) by Sale #1’s square footage of 1,680. This was the method adopted by Congdon to make this particular adjustment (defendant’s exhibit A, at 64).
1[4]. While Court of Claims Act § 19 (1), which governs the matter of suspension of interest on Court of Claims awards generally, provides: “[i]f a claim which bears interest, is not filed until more than six months after the accrual of said claim, no interest shall be allowed between the expiration of six months from the time of such accrual and the time of the filing of such claim,” the Court of Claims Act applies only to the extent it is not inconsistent with the Eminent Domain Procedure Law (see EDPL 705; Boyajian v State of New York, 293 AD2d 560 [2002]). EDPL 514 (B) specifically addresses the suspension of pre-judgment interest in appropriation cases in the Court of Claims. Pursuant to that statute, interest will be suspended “unless a condemnee files and serves his claim against the condemnor for damages arising from the acquisition of his property, 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.” In this instance, because there is no evidence on the record establishing the date of personal service of the notice of acquisition, prejudgment interest should not be suspended (Sokol v State of New York, 272 AD2d 604 [2000]).
1[5]. Note that Gardner’s estimated land value was $230,000, substantially higher than the Court’s revised land value.