GILBERT v. THE STATE OF NEW YORK, #2009-013-502, Claim No. 107457
JOYCE I. GILBERT
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
PHILIP J. PATTI
LEVY & LICATA, P.C.
BY: WALTER J. LICATA, ESQ.JAMES M. HARTMAN, Of Counsel
HON. ANDREW M. CUOMO
Attorney General of the State
of New York
BY: REYNOLDS E. HAHN,
ESQ.Assistant Attorney General
June 16, 2009
See also (multicaptioned
Claimant Joyce I. Gilbert was the owner of property located in the Town of
Irondequoit by virtue of a deed dated December 28, 1984 and recorded in the
Monroe County Clerk’s Office on February 5, 1985 in Liber 6659 at Page 3
(Exhibit 1). It consisted of five separate parcels on 6.989± acres, one of
which was improved with a two-family structure having approximately 130 feet of
frontage on Thomas Avenue on the east. It was bounded on the west by lands
owned by the City of Rochester, on the north by lands owned by her husband
Alfred Gilbert as well as lands of the Defendant comprising the right-of-way for
the Stutson Street Bridge, and on the south and east by lands formerly owned by
the New York Central Railroad and others whose properties also fronted on Thomas
Avenue (Exhibit 4). A portion of her property was taken in fee pursuant to
Section 30 of the Highway Law and the Eminent Domain Procedure Law of the State
of New York and is described in the taking map as “Stutson Street, B.I.N.
3317120 Over the Genesee River, Map No.15, Parcel No. 15” and filed in the
Monroe County Clerk’s Office on February 9, 2000. The Defendant acquired
in fee 1.83± acres of Claimant’s property along its northerly side
and included all of the subject’s frontage property on Thomas Avenue
(130± feet) and westerly to the lands of the City of Rochester (Exhibit 4).
The foregoing date was stipulated by the parties as the date of acquisition. I
adopt the description of the appropriated property as set forth on the aforesaid
filed map. The Court has viewed the property (Court of Claims Act
By way of background, Claimant was the sole owner of the property described
in the above-referenced deed, and she stated that she acquired it with her own
funds. It abutted property owned by her husband Alfred to the north to whom she
leased the property for $20,000.00 per year. According to Claimant, he also
paid the taxes as well as some other expenses. Through Voyager Boat Sales, Inc.
(Voyager), a corporation wholly owned by Mr.
he used the unimproved portion of
Claimant’s property for the storage of boats. Prior to the taking, Mr.
Gilbert was able to access this acreage used for storage of boats from Thomas
Avenue by use of a road that ran along the northerly portion of the improved
portion of Claimant’s property, as well as the property of Mr.
Gilbert/Voyager as shown on Exhibit 5. The red line on Exhibit 5 designates the
westerly boundary of Claimant’s property prior to the taking; the
designation “A” on the exhibit represents Claimant’s property,
while the “B” generally is Mr. Gilbert’s property. The red
“R” on the exhibit shows the location of the road on the north side
of the improved portion of Claimant’s property which provided access to
and from Thomas Avenue to the unimproved portion of Claimant’s property.
This is the area that was acquired by the Defendant. It is noted that the
Gilberts’ properties were accessible under one or more of the spans of the
Stutson Street Bridge, as well as over lands leased on an annual basis by the
City of Rochester to Alfred Gilbert/Voyager.
The appropriation in fee of 1.83 ± acres involved the entire north end of
the Claimant’s property consisting of the two-family home and her entire
frontage on Thomas Avenue; the road providing access from Thomas Avenue to
Claimant’s property to the west and south, as well her homestead and the
Alfred Gilbert/Voyager property. The remainder, consisting of 5.159 ±
acres of vacant land, is bounded by the City of Rochester to the west; the New
York Central Railroad to the south; by private residences as well as lands owned
by Alfred Gilbert and Joseph Bettinger as tenants in common, all with frontage
on Thomas Avenue to the east; and on the north by the property taken by the
Defendant. As stipulated to by the Defendant at trial (Transcript - p. 121),
the remainder has no access to Thomas Avenue. It is Claimant’s contention
that her remaining property is in fact landlocked and has incurred significant
The Defendant, while acknowledging that Claimant’s remainder has no
access to Thomas Avenue after the taking, maintains that it is not landlocked.
It argues that prior to the taking, despite the fact that Claimant owned the
subject property separately from her husband and purchased it with her own
funds, there existed a “unity of use” between the two. As a result,
it argues that Claimant still has access over lands of her husband on the north
to a roadway designated as Marina Drive, as well as access to Thomas Avenue on
the east over lands co-owned by her husband and Bettinger.
In support of its contention, the Defendant points out that Claimant produced
no written lease between her and Gilbert/Voyager. It further argues that with
respect to the income tax summaries produced for Voyager by Mr. Gilbert, he
testified that the summaries did not show payment to Claimant for rental of her
land and that the only documentation he would have showing these payments would
be the canceled checks over the years and which he did not have time to produce
because of the number of checks involved (Transcript - pp. 155-159).
The Defendant also argues that in 1988, and again in1993, Claimant and her
husband and Voyager entered into Mortgage Consolidation and Extension Agreements
covering her property as well as that of Voyager, guaranteeing payment of
certain indebtedness owed by the parties to a Fred B. Kravetz and pledging their
respective properties as security (Exhibits B and C). It contends that, taken
together, this proves that there was a unity of use between the properties
separately owned by Mr. and Mrs. Gilbert.
Initially I must address the issue as framed by the Defendant as it pertains to
unity of interest. It is well settled that there is a three-pronged test to
establish unity between separate parcels: (1) unity of ownership, which is not
the case here; (2) contiguity, which does exist here; and (3) unity of use (4A
Nichols on Eminent Domain, §14B.03 [3d ed]). The proof before me shows
that the subject property supported the business of Voyager by providing a
storage area for its boats as well as those of its customers. In addition, when
called upon, Claimant, her husband and Voyager pledged their properties as
security for loans made in conjunction with the business of Mr. Gilbert and
Voyager, as well as the loan made to Claimant for the purchase of the subject
property. Further, prior to the appropriation, the properties shared a
contiguity facilitating accessibility from Alfred’s property to that of
Claimant in connection with the business of Voyager. While Claimant and Mr.
Gilbert both testified that she leased the subject property to Gilbert/Voyager,
there is no written lease between the parties. Also, the marked tax summaries
produced by Mr. Gilbert do not show a rental business expense. Although the
Defendant maintains that access to the subject’s vacant portion was never
gained by use of the road from Thomas Avenue but rather over Voyager’s
property, that assertion was sharply contradicted by the testimony of Claimant
and her husband.
While some of Claimant’s testimony is confusing as it relates to this
issue, the record demonstrates that this road was used by Voyager and its
customers, as well as others, to gain access to their boats. That is not to
suggest that this was the sole means of access, since it is clear that access
could be gained over the property of Mr. Gilbert and the City of Rochester prior
to the appropriation. While Defendant points to the Mortgage Consolidation and
Extension Agreements as further evidence to support its unity of use theory, I
believe it to be the least persuasive factor relating to that issue. It is
clear that Claimant owed Mr. Kravetz money relating to her purchase of the
subject property. It is apparent that her husband also was indebted to Mr.
Kravetz, and from a business standpoint it makes sense that Kravetz would seek
to have as much security as possible to secure any loans that the Claimant and
her husband might owe to him. Moreover, considering the length of her
marriage, Claimant’s active involvement in running and building the
business before suffering a serious injury and her obvious desire to see the
business continue, I do not find it surprising that Claimant would agree to
pledge her property as collateral for the consolidation and extension agreements
required by Kravetz. Therefore I do not give it as much weight as Defendant on
this issue in the before situation.
However, taking all the evidence before me as it relates to this issue, I am
compelled to conclude that there was a unity of use between these two properties
prior to the appropriation (cf. Guptill Holding Corp. v State
of New York, 23 AD2d 434).
That does not resolve the issue of whether the taking has landlocked
Claimant’s remainder. It is clear that Claimant has lost her frontage on
and access to Thomas Avenue. In fact, the Defendant stipulated to this fact at
trial (Transcript - pp. 121-122), and I so find in accordance with the aforesaid
Claimant contends that after the taking she has not only lost access to Thomas
Avenue but she no longer has any access to any public road or highway.
Defendant maintains that Claimant has access over the lands of Mr. Gilbert to
the north and thus to Marina Drive, as well as over the parcel he co-owns with
Bettinger to the south, which parcel has frontage to Thomas Avenue. In
addition it argues that since the taking was in fee, and not in fee without
right of access, the Claimant could seek permission from the Defendant to
establish a driveway over a portion of the appropriated area thus giving access
to Alfred’s property and thence to Marina Drive. It argues that it was
always the State’s intent to construct Marina Drive as part of this
project and to use it as access for equipment and material for the new
structure. For reasons not adequately explained on the record, that was not the
case. As a consequence, in order for the Defendant to gain access to the
construction site, it was necessary for it to secure temporary easements over
the property co-owned by Mr. Gilbert and Mr. Bettinger fronting on Thomas Avenue
and Claimant’s remainder, approximately two years after the appropriation
date (Exhibits I and J). While it is not clear from the record the date on
which Marina Drive became a public thoroughfare providing access to the property
of Alfred Gilbert, the City of Rochester lands and Voyager, it was years after
the actual taking.
Defendant, relying upon Regan v Lanze (40 NY2d 475), maintains that
Claimant is not landlocked since this was a taking in fee and not in fee without
access. It argues that it is the Defendant’s custom and practice not to
reiterate Claimant’s right as an abutting owner to access and hence does
not state “with access” in circumstances such as the claim at bar.
It then argues that Claimant would need only to seek a permit from the
Defendant’s Department of Transportation (DOT) to construct a means to
traverse the Defendant’s right-of-way. According to Defendant, a refusal
to allow access over this area would be arbitrary and capricious.
I believe that Defendant’s reliance on Regan, id., is
misplaced since that was really a case about the marketability of that
plaintiff’s title, not access. In addition, Regan involved the
acquisition of frontage of properties which already abutted a public highway and
to which they already had access. The appropriated parcels became part of the
right-of-way and as such “was burdened with the usual right of access of
the abutting owner [citations omitted]” (Regan v Lanze, 40 NY2d
475, 483, supra). The property involved in Regan abutted the
street both before and after the appropriation, a notable distinction from the
claim at bar. Here the only public street which the subject property abutted
was Thomas Avenue and the portion which abutted the street was acquired.
Further, the new O’Rorke Bridge sits on this parcel, and there is no
proof before me to support Defendant’s contention that it would have
granted her application to restore access to Thomas Avenue.
With regard to the area under the fourth span of the bridge that was acquired
by the Defendant which separates Claimant’s property from Marina Drive, it
was nonexistent on the date of the taking until at least three years thereafter.
While Karen Brown
posited that Marina Drive
was part of the project, rather than construct it to facilitate access to the
construction, the Defendant, again for unexplained reasons, opted to secure
temporary easements over Claimant’s property as well as the
Gilbert/Bettinger parcel. When asked if the State had built that road, I was,
and remain, puzzled by Ms. Brown’s response that “the project built
Marina Drive” (Transcript - p. 256). On a matter of critical importance
regarding access to the remainder, her testimony concerning the issue of when
Marina Drive was constructed was at best vague and at worst evasive. This is
especially so in light of the recent decision of the Court of Appeals in Lake
George Assoc.v State of New York
(7 NY3d 475). The Court in that case held
Property owners are entitled to consequential damages when the State's
appropriation of their property results in “the loss of their right to
enter and exit their property” (Pollak v State of New York, 41 NY2d
909, 910 ; see also Priestly v State of New York, 23 NY2d 152
). Pollak makes clear that damages must be paid unless the
condemnee retains “legal access” -- i.e. a legally enforceable right
to entry and exit. Damages are to be quantified based on a calculation of the
damages at the time of the taking with no effect given to subsequent efforts to
reestablish access (see Wolfe v State of New York, 22 NY2d 292, 295
; Kravec v State of New York, 40 NY2d 1060, 1062 ). This
principle serves as strong incentive for the government to plan carefully and
take only what is necessary or otherwise be subject to consequential damages
(see Wolfe, 22 NY2d at 295-296).
The Wolfe court makes clear, at 295, that:
The amount of damages to which the claimant is entitled as the result of an
appropriation is to be measured and fixed as of the time of the taking. (See,
e.g., Jackson v. State of New York, 213 N.Y. 34, 36; Kahlen v. State
of New York, 223 N.Y. 383, 390; Queensboro Farm Prods. v. State of New
York, 6 Misc 2d 445, affd. 5 AD2d 967, affd. 5 NY2d 977; Minesta Realty
Co. v. State of New York, 26 AD2d 592.)
A further distinction between the claim at bar and the Lake George matter
(Lake George Assoc. v State of New York, 7 NY3d 475, supra) is
that the latter acquisition was made pursuant to Highway Law §§10 and
30. The former section vests broad authority and power in the Commissioner of
Transportation to reestablish access over adjoining property. The subject
property’s taking was pursuant to §30 of the Highway Law and thus the
Commissioner’s power and authority is limited. Consequently, I am
constrained to base my opinion regarding damages arising as a consequence of
the taking before me as of the date of the taking (Wolfe v State of New
York, 22 NY2d 292, supra).
Even assuming that Marina Drive was supposed to provide access to the
construction site at the time of the taking, it still does not give Claimant
access since her remainder does not abut that roadway. Further, I believe the
Defendant’s reliance on 17 NYCRR Part 125 is misplaced. By design and
definition Part 125 refers only to accessing a State highway and there is
nothing in the record that proves that Marina Drive falls under the aegis of
that section. The fact remains that the subject property’s remainder does
not abut any public thoroughfare. Therefore, I find that after the taking the
subject property’s remainder is landlocked and consequential damages are
The assertion proffered by Defendant, that the Claimant need only apply for
a permit to cross the acquired area and it would have to be granted since a
denial would be arbitrary, is rejected because it does not equate to a right of
access to the remainder (see Windham v State of New York, 34 AD2d
590, lv denied 27 NY2d 481). The courts have held that the State cannot
require the Claimant to create a road over a public right-of-way to provide
access to the remainder when it was the State that destroyed it in the first
instance (Wolfe v State of New York, 22 NY2d 292, supra;
Gluckman v State of New York, 37 AD2d 870).
Similarly, the cost-to-cure theory urged by the Defendant, which would require
Claimant to extend a service road to her property from an adjoining parcel, may
not be used in this instance since to do so requires her to go outside the
boundary line of the remainder (St. Patrick's Church v State of New York,
30 AD2d 473).
The Defendant also argues that the Claimant is under a duty to mitigate
damages, which suggested duty would compel her to compel her husband to either
buy his co-tenant Bettinger’s interest in the property which has frontage
on Thomas Avenue, or in the alternative to commence a partition action against
Mr. Bettinger to secure ownership of that parcel. The Defendant contends that
Mr. Gilbert exercised both dominion and control over that parcel as well as his
wife’s premises, relying upon his statement at trial that since her
injury she has been limited to “go for” duties in the operation of
the business. I do not find that statement in any fashion establishes his
complete control over her property. It fails to acknowledge that both Mr. and
Mrs. Gilbert testified that, while her role in sales has been curtailed because
of her injury, she still participates in business decisions and he still seeks
her advice in the operation of Voyager. It argues that in the option agreement
(Exhibit F, ¶ 5.c), Mr. Gilbert agreed to undertake a partition
action if he were unable to obtain sole ownership. No demands ever materialized
and the option was not exercised, but even if it had been, there is no
certainty that he would be successful in securing sole ownership of the parcel.
It is just as likely that Mr. Bettinger could successfully defend the action or
that a third party could ultimately secure ownership. Moreover, I place little
probative weight on the assertion by Defendant that the placing of a Voyager
boat sign on this jointly-owned parcel was evidence of Mr. Gilbert’s
dominion or control over this parcel to the exclusion of Mr. Bettinger’s
interest in it.
Furthermore, Defendant’s contention that its offer to Mr. Gilbert to
leave a commercial driveway over these jointly-owned lands at the conclusion of
the construction and that he refused, does not demonstrate his control over the
use of this property. Rather, to the contrary, it demonstrates that Mr. Gilbert
lacked the dominion and control as it relates to the use of this property that
Defendant argues he possessed.
I further find that Defendant’s contention that there is a unity of
interest in this case must also fail. Claimant is seeking severance damages
suffered by her property as a result of the taking, not as a result of the
Defendant’s taking of some adjoining property which has affected her
interest. In its simplest form, Claimant seeks consequential damages to her
remaining parcel since she has been deprived of access to a State, county or
local public road or highway. The fact that I find a unity of use prior to the
appropriation does not, perforce, compel me to find there is a unity of
interest, especially on these facts, and I decline to do so based on the proof
in this record.
Finally, I find Defendant’s position that Claimant must mitigate damages
by employing a cost-to-cure is without merit in this case since it would compel
Claimant (not her husband) to go outside the boundary lines of her property to
obtain property rights in order to remedy her loss of access, which is not
consistent with existing case law (Gluckman v State of New York, 37 AD2d
870, supra; Donaloio v State of New York, 99 AD2d 335, 338,
affd 64 NY2d 811, but see Fodera Enters. v State of New
York, 275 AD2d 85; and Matter of County of Schenectady (Pahl), 194
AD2d 1004, lv denied 83 NY2d 756 and 84 NY2d 806).
One final note regarding Marina Drive, the record establishes that the Town of
Irondequoit was unable to acquire the necessary property to complete the access
to the Defendant’s right-of-way as anticipated in its construction plans.
It is clear that this road was never to be a State highway or road but rather
was to be constructed by and dedicated as a town road. To accomplish this it
became necessary for a private third party to acquire the necessary property and
donate it to the Town to finally construct the Marina Drive access. As noted
above, this was a critical reason the Defendant secured a temporary easement
over Claimant’s remainder as well as over the lands co-owned by
Claimant’s appraiser opined that the highest and best use for the subject
property before the taking was for commercial use compatible with the
area’s “commercial uses utilized in conjunction with water frontage
and necessary supporting uses,” including retail, motels, restaurants,
boat sales and storage (Exhibit 2, p. 27). After the taking, his opinion was
that it was landlocked and therefore of reduced commercial potential and of use
only in conjunction with adjacent property.
The Defendant’s appraiser, on the other hand, divided the property into
two distinct parcels he designated as Economic Unit #1 (improved) and Economic
Unit #2 (unimproved ). In the before-taking analysis he opined that the highest
and best use for the improved parcel was as multi-family residential use
(Exhibit A, p. 27). His opinion of the highest and best use of the unimproved
portion of the subject property (Economic Unit #2) was for low density
commercial and multi-family residential development (Exhibit A, p. 47).
After the taking, Economic Unit #1 has been taken in whole, leaving only the
unimproved portion of the subject property, Economic Unit #2, to be considered.
Defendant’s appraiser opined that this parcel’s highest and best use
remained unchanged. He assumed that after the taking Marina Drive would provide
access to the subject property. This assumption of course was based upon the
Defendant’s agreement to some application initiated by Claimant to gain
access over the area taken in fee by Defendant. This assumption has been
rejected by the Courts and consequently is without any legal support (Guptill
Holding Corp. v State of New York, 23 AD2d 434, supra). Anticipating
that this theory might be unacceptable, he then opined that a cost-to-cure
approach was available and should be employed in his valuation of after value.
He includes as Exhibit 7 of the appraisal his analysis of how this cost-to-cure
would be utilized. He again opines that the temporary easement taken by
Defendant over the Gilbert/Bettinger property would become permanent. This
fails to acknowledge that case law does not look with favor upon such a
cost-to-cure that requires the Claimant to go outside of her boundaries as noted
above, but he concludes that in this case it is an appropriate alternative
“because of a unity in title between Alfred and Joyce Gilbert, the
cost-to-cure is technically not outside the property bounds and can legitimately
be considered.” Unfortunately, that is not the case as there is nothing
in this record that in any way establishes that there is a unity of title
between Alfred and Claimant. While there is a unity of use that existed prior
to the taking, there is nothing that establishes this so-called unity of title
and his theory regarding a cost-to-cure is rejected.
However, to Defendant’s appraiser’s credit, in anticipation that
both of his opinions regarding value premised on access being available to the
subject property’s remainder could be rejected by me, he alternatively
valued the remainder as landlocked and concluded that in this instance its
highest and best use was for Accessory Commercial Use (Exhibit 6-1 of Exhibit
I find the highest and best use for the subject property prior to the taking to
be for commercial use. I find the subject property’s highest and best use
after the taking to be for sale to adjoining owners, noting that that may
include a multitude of purposes consistent with the zoning at the time of the
taking which was “River Harbor District” allowing commercial and
residential development, which in my opinion is consistent with the opinions of
In arriving at the before value of the subject property, I considered the sales
of both experts as they related to the value of the land as vacant. I am aware
that this required me to reject Defendant’s analysis of Economic Unit #1.
However, it does not in my opinion preclude me from examining his sales for
Economic Unit #2 and applying the subsequent analysis to the entire property as
if it were vacant.
I considered Defendant’s Land Sale # 4 in determining the subject
property’s before and after value, particularly since the other comparable
sales he offered required substantial “absolute” adjustments, to
wit, 55% for Land Sale # 2; 50% for Land Sale # 5; and 45% to Land Sale # 6
(Exhibit A - p. 48), all of which in my opinion are too excessive to really be
With regard to Land Sale # 4, I have applied a negative adjustment to this
sale to reflect that it occurred some three years after the appropriation. An
increase in the positive adjustment for size made by Defendant’s expert to
this sale is required to reflect the difference in size between this sale and
the subject property. I also disregarded the adjustment to the sale for
“shape,” as I do not agree that there is as great a difference
between the two properties to support the purported difference found by the
Defendant’s appraiser. With these adjustments to Defendant’s
appraiser’s comparable Sale # 4, the subject property’s before
value would be $66,425.00 per acre.
Regarding Claimant’s comparable sales, I also encountered problems with
respect to the adjustments made by her expert and his analysis of the sales as a
whole. Claimant’s Sale #1 is located on Culver Road in the Town of
Irondequoit but further to the east in an area that was economically lagging in
growth. While in the area of Irondequoit Bay, it offered no access to the bay.
It is adjacent to the amusement park known as Seabreeze and is zoned commercial.
It was acquired in 1992, but the expert made no adjustment for time, further
supporting my belief that commercial development in this area was somewhat
stagnant with the exception of the amusement park which was periodically
upgrading rides it offered to the public. It contained 3.5± acres and had
200± feet of frontage on Culver Road. While it sold for $95,714 per acre,
it was approximately half the size of the subject property and requires a
downward adjustment to reflect the difference in size. I accept the
expert’s upward adjustment for topography to reflect the subject
property’s superiority. He also adjusted the sale upward to reflect the
sale’s less superior location but I find that it warrants a lesser
With respect to Sale # 2, I believe that the size difference was so great,
with the subject property being more than four times larger, that I accorded it
no weight in arriving at my determination of the subject property’s before
value. To try to adjust for this difference would entail such a significant
adjustment to render this sale incomparable and so I have rejected it. Sale # 3
was accorded little or no weight because the size differential, approximately
one-third that of the subject, as well as a measurable negative location
adjustment, both minimize its relative comparability.
I have given greater consideration to Sale # 4, since it was the most
comparable in size to the subject property. Its location is superior to the
subject property and a downward adjustment is required. Also this property has
reduced frontage on Panorama Trail in Penfield by a perimeter easement to an
adjoining owner which according to the appraiser would require development of
this property at a considerable distance from the highway, thus warranting a
positive adjustment to reflect the subject property’s superior utility.
The difference in topography between the subject property and sale also warrants
a negative adjustment to reflect their respective conditions.
Finally, I considered Claimant’s Sale # 5, but have applied a negative
adjustment to properly reflect the subject property’s larger size, as I
have done in Sale # 1. I have made a larger downward adjustment than that
applied by her expert to the sale to reflect its superior location in an attempt
to bring it into parity with the subject property.
After consideration of all the sales as adjusted, with greater weight accorded
to Claimant’s Sale # 4, I fix the before value of the subject property at
$99,370.00 per acre for 6.989± acres or $694,500.00(R).
In light of my finding that the remainder of Claimant’s property is now
landlocked and of value to adjoining owners for development as permitted under
the existing zoning, I have considered the sales as proffered by each party.
The Defendant’s proposed comparable sales are located in close proximity
to the subject property and are accorded somewhat greater weight after further
adjustment. Of the sales offered by Claimant, I considered only Sale # 7. I
negatively adjusted the sales price of the two sales relied upon by the
Defendant (Sales # 2 and #7 respectively - see Exhibit 6-4 of Exhibit
A) for time to reflect the fact that they occurred two and three years after the
taking. Likewise, I made a positive adjustment for size to Claimant’s
Sale #7 to reflect the subject property’s smaller size and hence higher
per acre value.
I find the after value of the remaining 5.159± acres to be $24,525.00 per
acre or a total of $126,525.00(R).
I fix Claimant’s damages as follows:
6.989± acres @ $99,370.00/acre $694,500.00(R)
Site Improvements$ 8,500.00
5.159± acres @ $24,525.00/acre $126,525.00(R)
TOTAL DAMAGES $576,475.00(R)
Claimant’s damages are allocated as follows:
1.83± acres @ $99,370.00/acre $181,850.00(R)
Site Improvements $ 8,500.00
Consequential Damages: $386,125.00(R)
TOTAL DAMAGES $576,475.00(R)
Therefore, Claimants are awarded $576,475.00 for all damages. As in
Sokol v State of New York (272 AD2d 604), where nothing in the record
established the date of personal service of the notice of acquisition on that
claimant, interest on the award should not be suspended pursuant to EDPL 514(B)
for any period preceding the filing of the claim. Interest, however, was
suspended by me with the consent of the parties, in an Amended Scheduling Order
filed on October 19, 2006 (dated September 29, 2007 [sic should have been
2006]), for the period from January 9, 2007 until April 23, 2007. Accordingly,
this award shall be inclusive of interest from the stipulated date of
acquisition and accrual, February 9, 2000, until its suspension from January 9,
2007 until April 23, 2007, with interest resuming until the date of this
decision, and thereafter to the date of entry of judgment herein, pursuant to
CPLR 5001 and CPLR 5002, and subject to Court of Claims Act §19(4).
The award to Claimants herein is exclusive of the claims, if any, of persons
other than the owner of the appropriated property, its tenants, mortgagees or
lienors having any right or interest in any stream, lake, drainage, irrigation
ditch or channel, street, road, highway or public or private right-of-way or the
bed thereof within the limits of the appropriated property or contiguous
thereto; and is exclusive also of claims, if any, for the value of or damage to
easements or appurtenant facilities for the construction, operation or
maintenance of publicly owned or public service electric, telephone, telegraph,
pipe, water, sewer or railroad lines.
All motions not heretofore ruled upon are now denied. To the extent that
Claimants have paid a filing fee, it may be recovered pursuant to Court of
Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
June 16, 2009
HON. PHILIP J. PATTI
Judge of the Court of Claims
Claimant was not a shareholder of that
corporation but was an officer. She actively sold boats until she was injured
in a fall. After the fall she still participated in the business but in a more
A DOT civil engineer who worked in the
Structures Design Group on the O’Rorke Bridge Project.
While Claimant suggested no value for site
improvements (Exhibit 2, p. 46), the Defendant’s appraiser in Exhibit A at
pp. 46 and 58, and in his testimony (Transcript - p. 300) described a gravel
parking area, some chain link fencing and a light pole, which he valued at