New York State Court of Claims

New York State Court of Claims

DUFEL v. THE STATE OF NEW YORK, and THE NEW YORK THRUWAY AUTHORITY, #2009-009-203, Claim No. 78568


Synopsis


Claimants were awarded the sum of $30,660.00 resulting from the temporary appropriation of their lands resulting from the “Thruway Bridge Collapse”.

Case Information

UID:
2009-009-203
Claimant(s):
WALTER EDWARD DUFEL, JR., as Administrator CTA of the Estate of WALTER DUFEL, REVA DUFEL, EDWARD DUFEL, NANCY DUFEL, JOHN DUFEL and LINDA DUFEL
1 1.As hereinafter set forth in this decision, Walter Dufel, one of the claimants herein, died during the pendency of this claim. The caption of this claim has therefore been amended to reflect the appointment of Walter Edward Dufel, Jr. as Administrator CTA of his estate.
Claimant short name:
DUFEL
Footnote (claimant name) :
As hereinafter set forth in this decision, Walter Dufel, one of the claimants herein, died during the pendency of this claim. The caption of this claim has therefore been amended to reflect the appointment of Walter Edward Dufel, Jr. as Administrator CTA of his estate.
Defendant(s):
THE STATE OF NEW YORK, and THE NEW YORK THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
78568
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
THE EFFRON LAW FIRM
Joshua J. Effron, Esq., Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Donald E. Shehigian, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 9, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a timely filed claim for damages caused by the acquisition of a temporary easement, without access, over claimants’ property pursuant to Article XII-A of the Highway Law, Article 2, Title 9 of the Public Authorities Law and the Eminent Domain Procedure Law, in a proceeding entitled “P.I.N. 2700.65.221, New York State Thruway Authority, The Mohawk Section, County of Montgomery, Subdivision No. 14, Map No. 733, Parcel No. 869" filed in the Montgomery County Clerk’s Office on May 1, 1987. The map and the property description set forth therein are hereby adopted by the Court and incorporated herein by reference. Pursuant to a stipulation between the parties, however, the Court finds that the appropriate date of taking and valuation is April 10, 1987, due to early entry onto the property.


This claim was filed with the Clerk of the Court on April 4, 1989, and an amended claim was filed with the Clerk of the Court on July 14, 1989. The claim has not been assigned or submitted to any other court, tribunal or officer for audit or determination. The Court has viewed the property pursuant to § 12(4) of the Court of Claims Act and § 510 of the Eminent Domain Procedure Law.
BACKGROUND
This appropriation claim has its origins in the Thruway Bridge collapse, which occurred when a bridge on the Thruway Main Line over Schoharie Creek collapsed on April 5, 1987, leading to the deaths of a dozen people when the vehicles in which they were riding plunged into Schoharie Creek.

In order to keep the Thruway operable, a detour was designed that would utilize the existing Route 5-S Bridge over Schoharie Creek. A temporary roadway to this bridge from the Main Line of the Thruway had to be constructed, and this temporary roadway was designed to pass through a 29± acre parcel of land owned by claimants[2]. As a result, the defendants acquired a temporary easement over 21±  acres of the 29± acre parcel.

In order to construct the temporary roadway, tarpaulin was laid down, several hundred thousand yards of granular material were trucked in to construct a ramp, and the roadway was paved with blacktop. The temporary roadway covered approximately 8 acres of the 21± acre temporary easement.

The entire bypass utilizing the existing Route 5-S Bridge over the Schoharie Creek is depicted in a photograph received into evidence as Exhibit J, with the property which is the subject of this claim being shown in the upper right-hand quadrant of the photograph.

After a new bridge was constructed on the Thruway Main Line, the temporary roadway was discontinued and it was physically removed from claimants’ property. By stipulation between counsel, it was agreed that the temporary easement was terminated on May 16, 1989 when possession of the 21± acre parcel was returned to claimants (Exhibit C).

The subject property is located in the Town of Glen, Montgomery County, and is part of a 112± acre farm consisting of several parcels of land owned by the late Walter Dufel, Sr. and Reva Dufel. As previously stated, the specific portion of the farm from which the 21± acre temporary easement was acquired consists of a 29± acre parcel, bounded by Route 5-S on the north and the Thruway Main Line on the south. The property is more particularly described in a deed from Walter Dufel to Walter Dufel and Reva F. Dufel dated September 13, 1963, and recorded September 25, 1963 in the Montgomery County Clerk’s Office in Book 349 of Deeds at page 228. The 21± acre temporary easement is irregular in shape, and consists of agricultural farmland. At the time of taking, there was an operating farm stand on the south side of Route 5-S, situated on the northwest portion of the 29± acre parcel from which the temporary easement was taken, but located outside of the 21± acre temporary easement.

In this claim, claimants seek compensation for the value of the temporary easement taken, consequential damages to their property allegedly caused by the use of that easement, and damages allegedly resulting from the loss and/or destruction of crops which had been planted within the easement area prior to its acquisition.

This claim has had a long and tortuous history dating back to the Thruway Bridge collapse in April 1987. After the claim and amended claim were filed in 1989, claimants failed to timely file an appraisal. Claimants made application to be relieved of their default, but their motion was denied pursuant to a Memorandum and Decision dated May 5, 1991 by my predecessor on the bench, the distinguished Judge Donald J. Corbett, Jr., followed by an Order entered June 3, 1991. This Order of Judge Corbett was affirmed by the Appellate Division, Third Department, in a Memorandum and Order dated November 5, 1992 (Dufel v State of New York, N. Y. State Thruway Auth., 187 AD2d 792).

The claim was eventually transferred to the Judge herein, and after attempts at settlement proved unsuccessful, a trial of this claim was commenced. During presentation of claimants’ proof, however, a complicated evidentiary issue arose with regard to the scope of expert testimony to be allowed pursuant to Court of Claims Act § 16, in light of the fact that claimants were previously precluded from filing an appraisal. As a result, the trial was adjourned sine die to provide both counsel with an opportunity to brief this issue.

Upon reaching its decision regarding this evidentiary issue, the Court placed its decision on the record and the trial was scheduled to resume. During the interim, however, one of the claimants, Walter Dufel, Sr., passed away[3], and it was necessary to once again adjourn the trial pending appointment of a personal representative for Mr. Dufel’s estate who would then be authorized to proceed with the prosecution of this claim. After considerable delay, letters of administration CTA were issued to Walter E. Dufel, Jr. Upon receiving notification of this appointment, the trial was again scheduled to resume, testimony was taken, and decision was reserved.

Following the trial, the parties, at their request, were given considerable time and opportunity in further attempts to settle this claim, and the Court at one point was even advised by counsel that a tentative settlement had been reached. However, through no fault of counsel, the proposed settlement did not receive final approval. After one final attempt, the Court has now been advised that the parties are and will be unable to agree upon a settlement, leading to this decision.

TESTIMONY
Walter Edward Dufel, Jr. (Edward Dufel), one of the claimants herein, testified with regard to crop damage allegedly caused by the State’s taking of the temporary easement. Mr. Dufel testified that at the time of the taking, he and his wife Nancy, together with his brother John and John’s wife Linda, leased the subject property and the farm stand from the late Walter Dufel and Reva Dufel. He testified that at the time of taking, approximately 11 acres of crops had been planted on the lands subject to the temporary easement, specifically, 3 acres of peas, 1 acre of strawberries, and 7 acres of rye grass. He further testified that all of these crops survived the flooding that occurred on April 5, 1987, but that they were unable to harvest these crops since they did not have any right of access. Since he had an interest in the property, and was personally familiar with the farming operations thereon, Mr. Dufel was permitted by the Court, over defendants’ objection[4], to testify as to the value of these particular lost crops. Mr. Dufel provided testimony concerning estimated crop yields, expected prices for the different crops, and the actual expenses incurred in cultivating these crops. His handwritten calculations, by which he arrived at a market value for the lost crops and his net loss, were received into evidence (Exhibits 19 and 20). Mr. Dufel acknowledged that he relied upon information from the Cornell University Cooperative Extension Program to estimate the crop yields for the different crops.

Mr. Dufel determined, based upon the foregoing and according to his calculations, that the net income for the 1 acre of strawberries in 1987 would have been $13,192.49. Furthermore, since strawberry plants are perennials, he testified that the taking in effect destroyed this crop for the next four growing seasons, and he estimated that his loss for each of those seasons would have been the same as in 1987. He therefore concluded that his total loss for the strawberry crop, as a direct result of the taking, was $65,962.45.

He further testified that the pea and rye crops, both annual crops, resulted in a loss, in net market value, of $5,702.90 for the rye crop and $7,753.20 for the peas.

As a result, Mr. Dufel testified that his total crop loss resulted in damages of $79,418.55.

Although he did not provide any calculations, Mr. Dufel also testified that there was a dramatic loss of business from the fruit and vegetable stand located adjacent to the easement area due to the fact that the Route 5-S Bridge at Schoharie Creek was closed to local traffic during the time of the Thruway detour.

Finally, Mr. Dufel also testified that as a result of the use, there were residual damages to the lands covered by the temporary easement, causing a loss of productivity for several years following termination of the easement. Specifically, Mr. Dufel testified that the 8 acres of the temporary easement on which the Thruway ramp was constructed were strewn with rocks after the State relinquished possession, and that he was still picking up rocks from this area in 1997, eight years after termination of the easement. He also testified that the soil on this 8-acre section had become severely compacted, creating drainage problems. He concluded that there was a marked loss of productivity on the lands, due to both the compaction of the soil and the rocks which were left on and in the ground.

Claimants also called Leonard Berdan, a real estate appraiser, to testify as to value. As previously noted, during Mr. Berdan’s testimony an evidentiary issue arose as to the scope of his testimony to be allowed, and the trial was adjourned to provide counsel with an opportunity to present their arguments. Specifically, counsel were directed to address what this Court believes was a unique issue in determining the extent of proof and opinion testimony to be allowed pursuant to Court of Claims Act § 16, in a situation where a party has not filed an appraisal, and has been judicially precluded from doing so, pursuant to § 206.21 of the Uniform Rules for the Court of Claims.

After careful consideration of this issue, this Court advised counsel that claimants’ appraiser would be allowed to present limited factual testimony regarding the properties set forth in claimants’ list of comparable sales, but would not be allowed to offer opinion testimony when comparing these properties to the subject property. This Court reasoned that any opinion testimony regarding comparable sales was precisely what should have been included in an appraisal, and claimants, since they were precluded from filing such an appraisal, had lost their right to have their appraiser present his opinion as to these comparable sales. The prior decision of the Appellate Division, Third Department, in precluding claimants from filing an appraisal, must be considered “law of the case” and claimants were therefore precluded from having the same opinion testimony admitted into evidence via another route.

Therefore, without the benefit of an appraisal, Mr. Berdan relied upon claimants’ previously filed and served “Notice of Comparable Sales” in his testimony. Mr. Berdan valued the 27± acre parcel (from which the 21± acre easement was taken) located between the Thruway and Route 5-S as a separate economic unit. He testified that the highest and best use of the subject property, both prior to and after the taking, was farmland for growing crops.

Based on the comparable sales, Mr. Berdan testified, over defendants’ objection, that prior to the taking the land had a value of $2,500.00 per acre for the 27± acre parcel, or a total of $67,500.00. Mr. Berdan also testified that the value of the farm stand adjacent to the subject property was $20,000.00.

Mr. Berdan also utilized comparable sales in determining an “after” value for the subject property. Mr. Berdan testified that the soil, now strewn with rocks after the State surrendered the temporary easement, resulted in a decrease in value of the 27± acre parcel by over 50%. He also testified that the marketability of the adjacent farm stand was also negatively affected by the taking. As a result, Mr. Berdan concluded that claimants had suffered total damages in the amount of $52,050.00.

Donald A. Fisher, MAI, ARA, was called as defendants’ expert witness, and testified with regard to the appraisal of the subject property (Exhibit A) which had been previously filed with the Court. As set forth in his appraisal, Mr. Fisher determined that the highest and best use of the property, both before and after the temporary easement, was for agricultural purposes, consistent with its current use as an operating crop farm.

Although he apparently was not permitted access to the farm property by Walter Dufel, Sr., Mr. Fisher valued the entire 112± acre farm as a single economic unit, which included improvements on the farm of the residential house, barn complex, and retail farm stand. Although he utilized a valuation date of May 1, 1987 (the date of filing of the map and description), rather than the April 10, 1987 date of early entry in determining value, Mr. Fisher testified that this discrepancy was insignificant and had no effect on his appraised value. Mr. Fisher utilized the sales comparison approach, and rejected both the cost approach and income capitalization approach in determining fair market value.

Based on the sales comparison approach, Mr. Fisher arrived at an overall unit value for the subject land (112± acres) of $1,900.00 per acre. The Court notes, however, that Mr. Fisher valued tillable acreage at $2,200.00 per acre, since he considered some of the property as “waste area” which was valued at a much lower value per acre.[5]

In determining the rental value of the temporary easement, Mr. Fisher utilized his $2,200.00 per acre value for tillable acreage, and applied that to the 21± acres acquired by the State in its temporary easement. Assuming a 10% return per year, and determining that the temporary easement of the State covered a period of two years, Mr. Fisher arrived at a rental value of the temporary easement of $9,200.00 ($2,200/acre x 10% x 2 years x 21 acres = $9,200.00 [R]).

Mr. Fisher also relied upon the same comparable sales which he utilized in determining “before value” in arriving at his “after value” for the property (after expiration of the temporary easement). He concluded that the 21± acres affected by the easement suffered a 10% loss in value, based on his opinion that the subject property’s tillage had suffered a decrease in quality due to the presence of large rocks left by the State within the easement area. He therefore determined that the property had suffered indirect damages of $4,600.00 (2,200/acre x 10% x 21 acres = $4,600.00 [R]), in addition to the previously discussed rental value of the temporary easement.

Based on the foregoing testimony and appraisal, Mr. Fisher therefore concluded that the claimants suffered a total loss of $13,800.00.

Mr. Fisher was also called by the defendants as a rebuttal witness with regard to valuation of the crop damage. In response to Edward Dufel’s testimony, Mr. Fisher prepared a report with regard to the costs and income typically experienced by growers of strawberries, peas and rye in Upstate New York (Exhibit U). The Court notes that this report did not, and could not, be utilized to establish the actual level of yields, income and expenses from claimants’ property, but rather was based upon the yields, income and expenses experienced by similar crop operations. Mr. Fisher acknowledged, however, that he had limited experience in assessing crop damage, and that his analysis was further complicated by the age of the claim and the lack of accurate financial information specifically attributable to these 11 acres of crops.

In his report, Mr. Fisher acknowledged that strawberry plants have a productive economic life of approximately three or four years. He testified, however, that the strawberry plants on claimants’ property had to have been severely damaged, if not completely destroyed, due to deprivation of oxygen resulting from the flooding of Schoharie Creek in early April 1987, as well as from the additional silt and stones deposited from these flood waters. In his report, however, Mr. Fisher acknowledged that photographs taken of the property after the flooding subsided established that a portion of the strawberry plants did in fact survive the flooding. In his calculations therefore, he assumed that at best, only one half of the total strawberry crop could have been salvaged, and he reduced expected gross income from claimants’ property by 50% in his estimate of damages.

Based on the foregoing, Mr. Fisher concluded that claimant suffered a loss of net income from the strawberry crop of $4,370.00 for the two growing seasons covered by the temporary easement.

With regard to the 3 acres of peas which had been planted prior to the flood, Mr. Fisher again reported that this crop had to have been significantly damaged, resulting in reduced yield due to the flooding of Schoharie Creek, contrary to the testimony of Mr. Dufel.

Mr. Fisher reported that a typical farmer in a similar operation could expect a potential gross income of approximately $1,500.00 per acre for the peas, for a total of $4,500.00 for the 3 acres on claimants’ property. Mr. Fisher, however, reduced this calculated gross income by 50%, assuming that one half of the crop had been destroyed by the natural flooding of Schoharie Creek. As a result, he calculated gross income for 1987 for the 3 acres at $2,250.00, less expenses in harvesting that crop of $290.00, resulting in net income of $1,960.00 for the 3 acres.

Even though the acreage was not available to the claimants for farming operations during the second year of the easement, Mr. Fisher did not credit any value to a second-year pea crop since peas are an annual crop.

Based on Mr. Dufel’s testimony that the rye grass was planted solely as a cover crop, with the intention of plowing that crop back into the field, Mr. Fisher calculated the expenses incurred in establishing such a rye crop at $500.00 for the 7 acres of rye. In other words, he believed that the out-of-pocket expenses incurred in establishing this rye crop was the most appropriate method of determining claimants’ damages.

With regard to both the strawberry and pea crops, Mr. Fisher also reported that any rental value attributable to the temporary easement for this acreage should be deducted before determining any lost income, since that rental figure represents payment for loss of use of the land, and the determination of crop damage assumes that claimants had use of that land.

FINDINGS AND DAMAGES
In appropriation claims, whether it involves a taking in fee or, as in this case, solely a taking for a temporary easement, claimants are entitled to just compensation, with the amount being determined by reference to the fair market value of the property according to its highest and best use (Matter of Town of Islip [Mascioli], 49 NY2d 354). Additionally, just compensation includes not only the direct damages (in this particular case, damages for the loss of use of the property during the period of the temporary easement), but also any indirect damages resulting from an impairment to the remaining property as a result of the appropriation. In this particular case, and as set forth above, claimants seek such indirect damages based upon damage to previously planted crops which they were unable to harvest. Claimants also contend that they suffered indirect damages, alleging that the land covered by the temporary easement suffered a diminution in value caused by the State’s use during the period of the temporary easement. The assessment of damages, however, is complicated by inadequacies in proof submitted by the various expert witnesses.

From claimants’ perspective, they only presented limited proof as to the value of the lands subject to the temporary easement in their attempt to establish both a “before value” and “after value”, due to their failure to timely file an appraisal.

Additionally, the testimony of Edward Dufel regarding crop damage was also of limited value. Although admitted into evidence, the Court has placed little weight on the handwritten notes relied upon by Mr. Dufel during his testimony (Exhibits 19 and 20), and finds not only that his estimates of lost income are exaggerated, but that certain expense items have been omitted from his calculations in determining total lost net income.

On the other hand, defendants’ assessment of crop damage (Exhibit U) was also of limited value, since it was prepared by Mr. Fisher many years after the actual loss by the claimants, and did not specifically address the loss allegedly suffered by claimants, but rather was based upon “typical” yields, income, and expenses for the three crops in similar operations.

Nevertheless, despite these gaps or deficiencies in proof, the Court must address the various items of damages (value of temporary easement, diminution of value, and crop damage) sought by claimants.

As previously stated herein, claimants’ appraiser (by his testimony) and defendants’ appraiser (by his appraisal) agree that the highest and best use of the property, both before and after the appropriation, was for agricultural purposes and specifically for use as a crop farm. The Court agrees and hereby finds that the highest and best use of the property subject to the easement, both before and after taking, is for agricultural use as a crop farm. Furthermore, the parties stipulated that the lands subject to the appropriation contained soil of the highest quality found in New York State, and the Court hereby finds accordingly.

I. VALUE OF TEMPORARY EASEMENT

The parties stipulated that based upon early entry, the temporary easement commenced on April 10, 1987. The easement was terminated on May 16, 1989 when a “Certificate of Termination of Temporary Easements” was recorded in the Montgomery County Clerk’s Office (Exhibit C), and these dates have been adopted by the Court for purposes of determining damages.

The Court hereby agrees with claimants’ appraiser that the 29± acre parcel, from which the 21± acre easement was taken, is best valued as a single economic unit, rather than considering the value of the entire Dufel farm, which consists of several different and distinct parcels, and includes many building improvements.

Defendants’ appraiser valued the tillable farmland at $2,200.00 per acre prior to taking. As previously discussed herein, claimants were limited in their proof as to value, although claimants’ appraiser did state, based on comparable sales, that claimants’ tillable farmland was worth $2,500.00 per acre.

The Court finds, based on the evidence presented and considered, that prior to taking, the lands which were subject to the temporary easement had a value of $2,200.00 per acre.

Defendants’ appraiser, in determining damages for loss of use of the property, utilized a 10% annual rate of return, which the Court finds appropriate.

Therefore, for the 21± acres appropriated by the State for the temporary easement, the Court finds a “before taking” value of such lands at $2,200.00 per acre, or $46,200.00. With a 10% annual rate of return, the Court finds that the rental value of the temporary easement was therefore $4,620.00 per year. Since the easement was in effect for a period of just over two years, the Court finds that claimants should be awarded the sum of $9,240.00 for the rental value of the temporary easement.

II. DIMINUTION IN VALUE

As previously indicated, claimants contend that at the termination of the temporary easement, the lands covered by the easement were diminished in value as a result of the particular use by the State.

The Court credits Mr. Dufel’s testimony that after termination of the easement claimants had difficulty in cultivating the land due to both a compaction of the soil and the rocks that were left on the property by the State. Mr. Dufel testified that the lack of productivity was especially evident on the 8 acres on which the Thruway ramp had been constructed. The Court can easily understand that this 8-acre area bore the brunt of traffic and usage and would have been most adversely affected in terms of soil condition at the termination of the easement.

Even though claimants did not have the benefit of a filed appraisal specifically addressing this residual damage, claimants’ appraiser, Mr. Berdan, estimated that lands with rocky soil could suffer an approximate 50% reduction in value, based upon his review of comparable sales.

In his appraisal, defendants’ appraiser, Mr. Fisher, acknowledged that the area affected by the easement suffered some diminution in value. He estimated that due to the rocky soil, the entire 21± acre easement suffered a 10% reduction in value. The Court notes that Mr. Fisher did not make any distinction in the extent of damages suffered between the 8± acres on which the Thruway ramp was located and the balance of lands (13± acres) subject to the easement.

Based on the foregoing, the Court accepts Mr. Fisher’s assessment that there was a 10% diminution of value to the land upon termination of the easement, but only for the 13± acres unaffected by the construction of the Thruway ramp. It is the further finding of this Court that the 8± acres within the easement area on which the Thruway ramp was constructed suffered a much greater loss in value due to compaction of the soil and a higher percentage of rocks which were strewn about the farmland within this area. Accordingly, the Court finds that the 8± acres on which the Thruway ramp was constructed suffered a 40% diminution in value.

Utilizing the previously determined “before value” of $2,200.00 per acre, a 10% reduction in value for 13± acres results in indirect damages of $2,860.00 ($2,200.00/acre x 13 acres x .10 = $2,860.00), and a 40% reduction in value for 8± acres results in a diminution of value of $7,040.00 ($2,200.00/acre x 8 acres x .40 = $7,040.00), for a total loss in value of $9,900.00, which said sum is hereby awarded by the Court.

III. CROP DAMAGE

Claimants also seek indirect damages resulting from their inability to harvest certain crops which had been planted on the appropriated parcel prior to the taking, since they did not have access during the period of the temporary easement. Claimants allege, without dispute, that 11 acres of crops had been planted prior to the taking, consisting of 1 acre of strawberries, 3 acres of peas, and 7 acres of rye.

The State argues that it is not responsible for any damage to these crops, since they must have been destroyed by the natural flooding of Schoharie Creek which occurred on April 5, 1987, prior to the taking. Mr. Dufel testified, however, that these crops survived the flooding, and Mr. Fisher concedes, in his assessment of crop damage (Exhibit U), that aerial photographs establish that at a minimum, a portion of both the strawberry and pea crops survived the natural flood. Based on the foregoing, the Court finds that these crops survived the flood, and the State must respond in damages. As will be set forth herein, the Court, however, does agree with Mr. Fisher’s analysis that yields for these crops would have been substantially reduced as a result of the flooding, for which the State is not responsible.

The proper method of determining the measure of damages for crops which are growing on land but cannot be harvested due to an appropriation is the fair market value of those crops at maturity, less the amount of labor and expenses which would be required from the date of destruction (in this case, appropriation) to maturity (Di Bacco v State of New York, 53 AD2d 939).

Edward Dufel testified that he utilized this formula in his calculations (Exhibits 19 and 20) in an attempt to determine the market value of the lost crops and the expenses which were not incurred by claimants in bringing such crops to maturity. However, as brought out under cross-examination, Mr. Dufel did not include certain fixed costs (expenses such as land rental, real estate taxes, insurance, machinery, and advertising costs) and therefore understated the amount of expenses.

Additionally, and more significantly, Mr. Dufel utilized crop yields “at the high end”[6] obtained from Cornell University Cooperative Extension, and did not account for any crop loss due to the flooding of the subject property immediately prior to the State’s acquisition of the temporary easement. Mr. Dufel’s testimony as to crop damage, therefore, must be considered in light of these omissions.

On the other hand, Mr. Fisher’s report and testimony are of little significance, as they do not relate at all to the Di Bacco rule, but rather are simply estimates of what a “typical” farm operation might produce for these particular crops. The Court will therefore rely more heavily upon the calculations testified to by Edward Dufel as more reflective of the actual loss sustained.
A. Strawberries

According to Mr. Dufel, 10,000 strawberry plants were planted in 1985, and he expected a very productive year in 1987 from this crop. According to his calculations and testimony, claimants suffered a loss of $13,192.49 in lost net income from this crop in 1987. As indicated above, however, the Court finds that expenses have been understated, and that Mr. Dufel did not take into account a significant loss to the strawberry crop resulting from the natural flooding which occurred prior to the taking.

Based upon the testimony and the rebuttal report of Mr. Fisher, the Court finds that the amount claimed as lost net income must be significantly reduced to account for these factors. The Court therefore determines that claimants suffered a net loss of $7,500.00 from the lost strawberry crop in 1987.

Since this amount represents lost income resulting from anticipated use of the property subject to the easement, and to prevent a double recovery, the Court must therefore deduct the annual “rental value” for this 1 acre of land devoted to the strawberry crop, previously determined to be $220.00. The net award to claimants, therefore, for the loss of the strawberry crop is $7,280.00.

Claimants also contend that since the strawberries are perennial plants, they are also entitled to the same amount of damages for at least the next two growing seasons, one season during the term of the temporary easement (1988) and an additional “lost” growing season in 1989 resulting from termination of the temporary easement in May 1989.

Even though strawberry plants do not have to be replanted on an annual basis, and can provide three to four years of production, it has been held that since the amount of cultivation and labor required for a second crop of strawberries is essentially the same as required for a first crop, there is no difference whether the strawberries are viewed as annual or perennial plants (Venie v South Central Enterprises, Inc., 401 SW2d 495). The Court adopts this reasoning and finds that claimants have not established their claim to any lost income from the strawberry crop for any year following 1987. Specifically, the Court finds that Mr. Dufel’s testimony attributing the same lost income in 1987 for subsequent years is entirely speculative, as it does not account for expected differences in crop yields and appropriate expenses relating to the crop. Accordingly, claimants have not established any basis on which to make a further award of damages for the lost strawberry crop in any year except 1987.
B. Peas

As with its analysis of the strawberry crop, the Court has relied more heavily upon the calculations and testimony of Edward Dufel in determining an appropriate amount of damages for the 3 acres of peas which were planted but not harvested. The Court has made the same adjustments (failure to include all expenses and loss of a significant portion of the crop due to natural flooding) to Mr. Dufel’s determination of $7,753.20 in lost income, and awards claimants the sum of $4,400.00 for their lost income. From this amount, the Court must again deduct the land “rental value” of the temporary easement for one year at $220.00 per acre, for a total of $660.00. The Court therefore awards claimants the sum of $3,740.00.

As peas are an annual crop, the Court makes no award for any subsequent growing years.
C. Rye

Mr. Dufel testified that the 7 acres of rye had been planted as a cover crop, and this particular crop was not going to be harvested for sale, but was to be plowed back into the ground to increase the nutrient level of the soil.

The Court therefore agrees with the analysis of Mr. Fisher, defendants’ appraiser, that the appropriate measure of damages in this instance should be the costs incurred by claimants in establishing this crop up to the date of taking, and claimants should be compensated accordingly, without any deduction for “rental value” of the acreage. The Court finds that claimants should therefore be awarded the net sum of $500.00 for their expenses in establishing the rye crop.

Although both Edward Dufel and Mr. Berdan offered testimony with regard to the loss of marketability of the fruit and vegetable stand located at the northwest corner of the 29± acre parcel, due to the loss of traffic caused by the temporary easement, no such loss was established and therefore no award is made herein.

SUMMARY
Based upon the foregoing, the award to claimants resulting from the temporary easement, can be summarized as follows:
1. Rental value of temporary easement (two years) $ 9,240.00

2. Diminution of value
a. 13 acres $2,860.00
b. 8 acres $7,040.00
$ 9,900.00

3. Crop damage
a. Strawberries $7,280.00
b. Peas $3,740.00
c. Rye $ 500.00
$11,520.00
TOTAL $30,660.00

The award to claimants herein is exclusive of the claims, if any, of persons (other than the owner of the appropriated property), 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.

INTEREST
In a typical appropriation claim, interest begins to run on any award from the date of accrual of the claim, pursuant to Court of Claims Act § 19 and Eminent Domain Procedure Law § 514(B). Interest, however, is suspended if a claim is not filed within six months of accrual or the date of service upon claimants of the Notice of Appropriation, whichever date is later. Once the claim is filed, interest then resumes.

In this claim, the parties have stipulated that there was an early entry onto the property on April 10, 1987, vesting occurred on May 1, 1987, and claimants were served with a map and Notice of Appropriation on May 7, 1987 (Exhibits P and Q). Since the date of service of the Notice of Appropriation (May 7, 1987) is later than the accrual of the claim, interest would therefore cease to accrue on November 7, 1987 if a claim was not filed prior to that date. In this case, the claim was not filed until April 4, 1989. Accordingly, pursuant to § 19 and EDPL § 514(B), interest must be suspended for the period beginning November 8, 1987, and resumes again on April 4, 1989, the date of filing of the claim.

In this particular claim, however, there was no permanent appropriation of claimants’ property, as the taking was limited solely to a temporary easement, which ceased when the Certificate of Termination (Exhibit C) was recorded in the Montgomery County Clerk’s Office on May 16, 1989. At that time, possession was returned to claimants, and it is undisputed that claimants then had the ability and right to resume their farming operations on the lands which had been covered by the temporary easement.

Based on these facts, defendants contend that interest should be suspended from the time that full possession was returned to claimants. In support of this argument, defendants cite La Porte v State of New York, in which the Court of Appeals stated that “no constitutional mandate is violated by the denial of interest during periods while the owner has enjoyed the full beneficial use of his premises” (6 NY2d 1, 6).

The facts of La Porte, however, are clearly distinguishable from the instant claim. In La Porte, even though the State had appropriated certain land, the claimants were unaware of the taking and continued to use the land. Interest was denied in that case to prevent claimants from obtaining a double recovery. In the instant claim, however, claimants were obviously well aware of the taking, and were immediately removed from possession upon early entry by the State.

Additionally, the period of time in which interest was suspended in La Porte occurred prior to the time that a claim was filed. In the claim herein, defendant seeks to suspend interest for a period of time subsequent to the filing of a claim. Significantly, the Court of Appeals stated, in La Porte, that after the filing of a claim, “there is no dispute that interest is to be paid” (6 NY2d 1, 5).

Based on the foregoing, this Court finds that La Porte is inapplicable to the instant claim, and interest should be paid on the award as set forth herein.

Claimants are therefore awarded statutory interest on the award from April 10, 1987 (the date of taking) through November 7, 1987 (6 months after service). Interest is then suspended until the date of filing of the claim on April 4, 1989, at which point interest resumes to the date of this Decision and thereafter to the date of entry of judgment.

Edward Dufel testified that he, his brother and their respective wives operated the farmlands subject to the temporary easement pursuant to an oral lease with their parents, the late Walter Dufel and Reva Dufel. While the Court certainly has no reason to believe otherwise, there is no written lease or other documentary evidence to establish the specific rights between the late Walter Dufel and Reva Dufel, as landlords, and Edward Dufel, Nancy Dufel, John Dufel and Linda Dufel as tenants. Accordingly, this Court hereby directs that judgment be entered in favor of the record owners of the farmland subject to the temporary easement at the time of taking, and with respect to Edward Dufel, Nancy Dufel, John Dufel and Linda Dufel, the claim is dismissed. Reva Dufel is entitled to the principal of the award herein, since her right of survivorship continues in the proceeds. Any interest on the award which accrued after the taking (April 10, 1987) and before the death of Walter Dufel (August 12, 2000), however, must be divided equally between his estate and Reva Dufel (Matter of City of New York, 252 App Div 103).

LET JUDGMENT BE ENTERED ACCORDINGLY.


September 9, 2009
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[2]. Edward Dufel testified that the temporary easement passed through a 29± acre parcel of land, while Leonard Berdan, claimants’ appraiser, testified that this particular parcel consisted of 27± acres. Since it has no bearing on the amount awarded herein, the Court hereby adopts Mr. Dufel’s estimate of acreage, except when referring to Mr. Berdan’s testimony.
[3]. The Court has been informed that Walter Dufel, Sr. died on August 12, 2000.
[4]. The State contended that claimants had failed to timely disclose Mr. Dufel as an expert witness, and that Mr. Dufel had failed to file an expert witness report as required by § 206.21 of the Uniform Rules for the Court of Claims.
[5]. Mr. Fisher also valued site improvements and building improvements, but these were unchanged in both “before value” and “after value”. However, the Court does not find the values of these improvements relevant to the valuation issue at hand.
[6]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.