DUFEL v. THE STATE OF NEW YORK, and THE NEW YORK THRUWAY AUTHORITY,
#2009-009-203, Claim No. 78568
Claimants were awarded the sum of $30,660.00 resulting from the temporary
appropriation of their lands resulting from the “Thruway Bridge
|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.
Footnote (claimant name)
THE STATE OF NEW YORK, and THE NEW YORK THRUWAY AUTHORITY
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
THE EFFRON LAW FIRM
Joshua J. Effron, Esq., Of Counsel.
HON. ANDREW M. CUOMO
Donald E. Shehigian, Esq.,
September 9, 2009
See also (multicaptioned
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
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
. 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
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
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
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
, 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
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
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’
, 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
As a result, Mr. Dufel testified that his total crop loss resulted in damages
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
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
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
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
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.
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 =
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
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
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.
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
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
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”
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.
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
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.
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
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
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
3. Crop damage
a. Strawberries $7,280.00
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.
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
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
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.
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the
Court of Claims
. 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.
. The Court has been informed that Walter
Dufel, Sr. died on August 12, 2000.
. 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.
. 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.
. Unless otherwise indicated, all references
and quotations are taken from the Court’s trial notes.