New York State Court of Claims

New York State Court of Claims

UNIVERSAL v. THE STATE OF NEW YORK, #2009-009-205, Claim No. 100363


Claimant was awarded the sum of $504,155.00 in this appropriation claim covering several separately defined parcels, either in fee or for temporary easements.

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:
BY: Michael R. Wright, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Joseph F. Romani, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
October 27, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed claim in which claimant Universal Instruments Corporation (Universal) seeks damages caused by the partial appropriation of its property, both in fee and for temporary easements, in the City of Binghamton. Seven separate parcels were acquired by the State in this appropriation, either in fee, fee without access, or by temporary easement. The total taking, in fee, consisted of .77± acres. The various parcels were acquired in connection with two related projects, the “Binghamton City: Brandywine Avenue Extension, State Highway No. C52-3, Broome County, PIN: 9306.46.211” and “City of Binghamton: Bevier Street, Broome County, PIN: 9306.46.223”.

The parcels are identified and described on the following appropriation maps: (1) Brandywine Avenue Extension: Map No. 58, Parcel 69 (fee without access), containing 4,433 ± square feet or 0.102 ± acres; (2) Brandywine Avenue Extension: Map No. 59, Parcel 70 (fee without access), containing 6,322 ± square feet or 0.145 ± acres; (3) Brandywine Avenue Extension: Map No. 51 R-1, Parcel 62 (fee without access), containing 11,389 ± square feet or 0.261 ± acres; (4) Brandywine Avenue Extension: Map No. 52 R-2, Parcel 63 (temporary easement), containing 18,422 ± square feet or 0.423 ± acres; (5) Bevier Street: Map No. 13, Parcel 13 (fee), containing 10,531 ± square feet or 0.242 ± acres; (6) Bevier Street: Map No. 32, Parcel 34 (fee), containing 960 ± square feet or 0.022 ± acres; and (7) Bevier Street: Map No. 14, Parcel 14 (temporary easement), containing 9,213 ± square feet or 0.212 ± acres (Exhibit 13).

The first four parcels were acquired by the State pursuant to §§ 30 and 349C of the Highway Law and the Eminent Domain Procedure Law, and the last three parcels were appropriated pursuant to § 30, as made applicable by § 10, Subdivision 34-A, of the Highway Law and the Eminent Domain Procedure Law.

As set forth in claimant’s appraisal, the takings occurred on three different dates between July 23, 1996 and August 27, 1996, but the parties and their respective appraisers have all agreed that the date of vesting and valuation is July 23, 1996 (Exhibit 1, pp 1-2). The maps and property descriptions set forth on the aforesaid notices of appropriation and maps are hereby adopted by the Court and incorporated herein by reference.

As set forth above, this claim is therefore actually based upon seven distinct takings in connection with two separate (but related) projects occurring on three separate dates. Nevertheless, the parties and their appraisers have approached this claim as a single valuation problem, addressing the cumulative effect of these takings on claimant’s property. The Court agrees with this approach and also finds that the date of vesting is July 23, 1996.

As acknowledged by claimant in its claim, the notices of acquisition were served upon claimant on July 23, 1996. The claim was filed with the Clerk of the Court of Claims on May 17, 1999. 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.

The subject property is bounded on the north by Bevier Street, on the east by North Griswold Street, on the south by a permanent easement for Interstate I-81/NYS Route 17[1], on the southwest by the northeast quadrant of the cloverleaf interchange at I-81/NYS Route 7 identified as I-81 Interchange 4, and on the west by NYS Route 7, also known as the Brandywine Arterial or Brandywine Avenue, and the southeast quadrant of the four-way interchange with the Brandywine Arterial and Bevier Street.

The Subject property consists of several parcels which were acquired by Universal in numerous transactions over a period of time. The original parcel of the subject property was acquired by Universal on July 31, 1958, by deed recorded in the Broome County Clerk’s Office in Book 981 of Deeds at page 189. This parcel is now identified as 145 and 159 North Griswold Street. A portion of this property was conveyed by Universal to the Broome County Industrial Development Agency on March 10, 1980, pursuant to a deed recorded in the Broome County Clerk’s Office in Book 1302 of Deeds at page 344. Universal, however, retained full occupancy and use of this property pursuant to a leaseback agreement with the Industrial Development Agency, and is therefore considered, for purposes of this decision, as the beneficial owner of this portion of the subject property. Universal has the right and obligation to purchase this property at the end of the lease term for $1.00.

The portion of the subject property known as 80 Bevier Street was acquired by Universal by deed dated December 19, 1988, and recorded in the Broome County Clerk’s Office in Book 1741 of Deeds at page 17. The parcel known as 82 Bevier Street was purchased by Universal through a deed dated February 27, 1989 and recorded in the Broome County Clerk’s Office in Book 1751 of Deeds at page 845. The property known as 84 Bevier Street, consisting of a strip of land approximately 27 feet wide and over 2,000 feet long, was acquired from the Delaware & Hudson Railway Company by deed dated May 1, 1989 and recorded in the Broome County Clerk’s Office in Book 1753 of Deeds at page 23. The portion of the property known as 135 Montgomery Street was acquired from the City of Binghamton by deed dated December 21, 1989 and recorded in the Broome County Clerk’s Office in Book 1769 of Deeds at page 852. The parcel known as 137 Montgomery Street was acquired by Universal through a deed dated June 25, 1992 and recorded in the Broome County Clerk’s Office in Book 1812 of Deeds at page 392.

All of the above properties, except for 145 North Griswold Street and 137 Montgomery Street, were conveyed by Universal to Dorner Mfg. Corp. in 1991 to reflect a company structure change. Copies of the deeds reflecting these conveyances were received into evidence at trial (Exhibit 6 [159 North Griswold Street], Exhibit 8 [80 Bevier Street], Exhibit 9 [82 Bevier Street], Exhibit 10 [84 Bevier Street], and Exhibit 12 [135 Montgomery Street]). A copy of the deed from Universal to the Broome County Industrial Development Agency, previously referred to herein and identifying the portion of the property known as 145 North Griswold Street, was received into evidence (Exhibit 7), and a copy of the deed by which Universal acquired the parcel known as 137 Montgomery Street was also received into evidence (Exhibit 11).

As set forth in claimant’s appraisal, Dorner Mfg. Corp. subsequently changed its name to Universal Instruments Corporation, the claimant herein. By virtue of this name change, the properties listing the owner as Dorner Mfg. Corp. are now therefore owned by Universal Instruments Corporation, the claimant herein.

The subject property is zoned IMD, as an Industrial Manufacturing District. General, light and heavy industrial uses are allowed in this zoning district. Additionally, commercial uses such as supermarkets, department stores, furniture sales, and eating and drinking establishments are also permitted as of right. Other uses such as shopping centers, hotels, motels, cinemas or theaters, and indoor and outdoor sale of building materials and supplies are also permitted, but these uses require a special permit to be obtained.
Patrick J. Gillard, the Chief Financial Officer of claimant, testified that during the period of approximately 1988 through 1992, Universal contemplated an expansion of its existing facilities, located on the original parcel, and that vacant land to the west of the existing building was acquired in several separate transactions (as detailed above) for this purpose. Ultimately, however, Universal expanded its operations in other locations, and this land (referred to by claimant as the West Parcel) remained vacant at the time of taking.

Mr. Gillard also testified that at one time, the lands of this West Parcel contained railroad yards and tracks, but that over the years use of this property for railroad purposes had ceased as a result of the “Binghamton Railroad Consolidation Project”.

Terry A. Zimmer, claimant’s facilities manager, discussed changes which occurred in Universal’s operations as a result of this appropriation. Specifically, Mr. Zimmer testified that the loading dock at the north end of the plant had to be reconfigured, and a new semi-circular driveway had to be constructed, so that tractor-trailer rigs could be safely loaded and unloaded. Mr. Zimmer testified that this change in operation was required since the appropriation on the south side of Bevier Street (in front of the manufacturing plant) reduced the distance between the building and Bevier Street by approximately 26 feet. As a result, after the appropriation there was insufficient room to allow the tractor-trailer rigs to safely back to the loading dock facing Bevier Street. Mr. Zimmer testified that the cost incurred by Universal to install the new driveway in order to mitigate this condition (caused by the reduction in building set-back) totaled $88,355.00.

Mr. Zimmer also testified that as a result of the taking, and since claimant was required to construct the new semi-circular driveway in front of the manufacturing plant, any and all access to the west parcel from Bevier Street was eliminated.

Marc Newman, Manager of Newman Development Group, testified that he had viewed this site for commercial development prior to the taking, and that he had entered into an option agreement with claimant to purchase the entire parcel for commercial development. Mr. Newman testified that even though this option was not exercised and the purchase did not go through, the appropriation which occurred in this matter was not a factor in that decision.

Gary Holmes, P.E., the Binghamton City Engineer, Timothy Giblin, P.E., an engineer with the State Department of Transportation (DOT), and Richard Kotasek, P.E., the State DOT Engineer in charge of the Brandywine reconstruction project, all testified on behalf of the defendant. These witnesses described the lower Brandywine development project, which included widening of the road and improvements in the access of this area. The purpose of the project was not only to improve traffic flow, but also to improve drainage in the Bevier Street/Brandywine Avenue area.

Mark A. Minoia, the City Assessor of the City of Binghamton, provided limited testimony regarding certain tax certiorari proceedings involving the subject property.

The only other witnesses to testify at this trial were the appraisers for the parties, Charles I. Francis for the claimant, and Kenneth G. Frommer for the defendant.

In performing his appraisal of the subject property (Exhibit 1), filed with the Clerk of the Court of Claims on June 14, 2001, Mr. Francis, claimant’s appraiser, determined that the subject property consists of two separate and independent economic units, which he designated the “East Parcel” and the “West Parcel”, and that each parcel was adversely affected by the takings in different ways. This division, and the effect of the takings on each parcel, are depicted on a sketch included with his appraisal (Exhibit 1, p. 81).

According to Mr. Francis, the East Parcel consisted of 11.273 acres of land prior to the appropriation, and was improved with the industrial manufacturing plant consisting of 203,688 square feet of floor area. Included in the East Parcel was the property acquired by Universal in 1958, as well as the 27 foot wide strip of land acquired in 1989 from the Delaware and Hudson Railway Company.

As set forth in his appraisal, the State acquired 0.264 acres in fee along Bevier Street, which reduced the distance between the manufacturing plant and Bevier Street (Map 13, Parcel 13, and Map 32, Parcel 34). As previously testified to by Mr. Zimmer, this taking required claimant to restructure the driveway leading to the loading dock area from Bevier Street, for which Universal claims it incurred total costs of $88,355.00.

A temporary easement of 0.196 acres affecting the East Parcel was also acquired (Map 14, Parcel 14).

The other unit, which he identified as the West Parcel, consisted of 9.823 acres, prior to the takings, of essentially unimproved land. This land was acquired by claimant through several purchases from 1988 through 1992. At the time of the takings, there was an old warehouse located on the northern portion of this parcel.

Mr. Francis determined that the State acquired 0.508 acres of land in fee, without access (Map 51-R1, Parcel 62, Map 58, Parcel 69, and Map 59, Parcel 70), and that these takings consisted of strips of land running along the northern and western borders of the property, eliminating access to this parcel from the abutting public streets. The State also acquired a temporary easement of 0.261 acres affecting this parcel (Map 52-R2, Parcel 63).

In making his appraisal, and considering that claimant’s manufacturing plant is located on the East Parcel, Mr. Francis determined that the East Parcel had a highest and best use as an industrial manufacturing facility, both prior to and after the takings. With regard to the West Parcel, consisting primarily of vacant land, Mr. Francis determined that this parcel had a highest and best use, prior to the takings, as vacant commercial land awaiting development. Based upon his determination that the West Parcel lost all access to public streets as a result of the takings along its northern and western borders, Mr. Francis determined that after the takings, the highest and best use of the West Parcel was limited to excess industrial development land, specifically for the Universal plant located on the East Parcel.

In his determination of value, Mr. Francis primarily utilized the comparable sales approach for both parcels, prior to and after the takings.

Based upon his analysis of comparable sales, Mr. Francis determined that the value of the land on the East Parcel (if considered vacant and available for industrial development) was $24,000.00 per acre prior to taking. The 11.273 acres, if vacant, therefore had a total land value, in Mr. Francis’ opinion, of $270,000.00 prior to taking.

Mr. Francis also utilized comparable sales of properties improved with an industrial facility, and arrived at a value of $16.40 per square foot of building gross floor area. Based upon the subject property’s 203,688 square feet of floor area, he arrived at a total value of the East Parcel, as improved, prior to taking, of $3,340,000.00.

After the takings affecting the East Parcel described above, Mr. Francis utilized the same comparable sales and, after adjusting for the loss of land (and set-back distance) along Bevier Street, arrived at a total after value of $3,280,000.00 for the East Parcel, a decrease in value of $60,000.00. With regard to the West Parcel, Mr. Francis used comparable sales of commercial property and established a value for the West Parcel, if vacant, of $175,000.00 per acre prior to the takings. Based upon the 9.823 acres attributed by Mr. Francis to the West Parcel, he concluded that the West Parcel had a total value, if vacant, of $1,720,000.00.

Since this approach assumed the property was ready for commercial development, Mr. Francis deducted the sum of $20,000.00 (the estimated cost to demolish the old warehouse situated on the property) and $28,000.00 (the estimated cost to relocate a fiber-optic cable which was located on the West Parcel pursuant to an easement), resulting in a net value, prior to the takings, of $1,672,000.00.

As previously mentioned, Mr. Francis concluded that after the taking, the West Parcel was no longer suitable for commercial development. In his opinion, the primary effect of the appropriation eliminated any legal, practical or economic access to the site. He therefore concluded that the only reasonable use for the West Parcel, following the taking, was for industrial development in conjunction with the adjacent industrial property (the East Parcel). Mr. Francis therefore utilized the same comparable sales that he had previously relied upon in determining a land value for the East Parcel, and determined that the West Parcel, after the taking, had a value of $24,000.00 per acre. He applied this value to the 9.315 acres on the West Parcel remaining after the appropriation, and arrived at a total value of $224,000.00. From this sum, he subtracted the cost of relocating the fiber-optic cable ($28,000.00) resulting in a net value for the West Parcel of $196,000.00. Mr. Francis did not take any deduction for the cost of demolishing the warehouse ($20,000.00), since the warehouse had been removed during the highway project.

With regard to the temporary easements affecting both parcels, Mr. Francis estimated the rental value at 10% of land value, and also assumed that the temporary easements were in effect for a period of two years. The temporary easement affecting the East Parcel covered 0.196 acres[2], and the temporary easement affecting the West Parcel was 0.423 acres. Mr. Francis utilized the land value of $24,000.00 per acre for both parcels, and arrived at rental value of the easements, for the two year period of $952.00 on the East Parcel, and $2,030.00 on the West Parcel.

Mr. Francis also concluded that claimant was entitled to reimbursement of $88,355.00, representing the total cost to claimant of reconfiguring and reconstructing the semi-circular driveway leading to the loading dock on the north side of the manufacturing plant (East Parcel).

His determination of damages to claimant can therefore be summarized as follows (Exhibit 1, p. 99):

East Parcel (Industrial Manufacturing) $3,340,000
West Parcel (Commercial Development Land) 1,672,000

TOTAL BEFORE $5,012,000

East Parcel (Industrial Manufacturing) $3,280,000
West Parcel (Industrial Development Land) 196,000

TOTAL AFTER $3,476, 000


East Parcel - cost to cure $ 88,355
East Parcel - temporary easement 952
West Parcel - temporary easement 2,030

TOTAL DAMAGES $1,627,337

The total amount of damages as determined by Mr. Francis were further identified as follows:

East Parcel

October 27, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. The subject property actually extends southerly beyond the I-81/Route 17 overpass, but the permanent easement, in favor of the State, precludes any access by claimant. As a result, neither appraiser considered that the lands owned by claimant south of I-81/Route 17 were affected by this appropriation. For purposes of this decision, therefore, this Court has determined that the “subject property” consists only of the property owned by claimant located north of I-81/Route 17 overpass.
[2]. Although the Appropriation Map (Map14, Parcel 14) states that the area taken for this temporary easement is 0.212 acres, Mr. Francis determined that the temporary easement is overlapped by the taking, in fee, shown on Map 32, Parcel 34. Accordingly, he reduced the “effective” area of the temporary easement to 0.196 acres (Exhibit 1, p. 82, fn 6).