| Chester Indus. Park Assoc., LLP v State of New York |
| 2009 NY Slip Op 06114 [65 AD3d 513] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Chester Industrial Park Associates, LLP,Respondent, v State of New York, Appellant. |
—[*1] Goldstein, Goldstein, Rikon & Gottlieb, P.C., New York, N.Y. (Michael Rikon of counsel),for respondent.
In an eminent domain proceeding, the defendant State of New York appeals, as limited by itsbrief, from so much of a judgment of the Court of Claims (Mignano, J.), dated December 18,2007, as, after a nonjury trial and upon a decision of the same court dated September 7, 2007,awarded the claimant, Chester Industrial Park Associates, LLP, damages allegedly incurred withrespect to its property denominated as subparcel A1 of section 117, block 1, lot 1.1, resultingfrom appropriation of its property and for the appropriation of a monument sign.
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding damages with respect to subparcel A1 of section 117, block 1, lot 1.1; as so modified,the judgment is affirmed insofar as appealed from, without costs or disbursements, and thematter is remitted to the Court of Claims for a new trial with respect to the portion of the claimthat sought damages with respect to subparcel A1 of section 117, block 1, lot 1.1, and for theentry of an amended judgment thereafter.
In this eminent domain proceeding, the claimant, Chester Industrial Park Associates, LLP,seeks direct and consequential damages allegedly resulting from the appropriation of portions ofits real property by the State of New York for the purpose of re-routing New York State Route94. After trial, the Court of Claims awarded the claimant the sum of $1,087,020, of which thesum of $517,994 consisted of direct and consequential damages resulting from the appropriationof a 12.6 [*2]acre portion of the claimant's property designated assection 117, block 1, lot 1.1. In the judgment appealed from, the Court of Claims, inter alia,awarded the claimant the sum of $13,630 for the appropriation of a monument sign. The Stateappeals from those portions of the judgment.
The actual appropriation of lot 1.1, as to which the claimant seeks direct damages, waslimited to a diagonal strip designated by the claimant's appraiser as subparcel A3. The remainderof lot 1.1, as to which the claimant seeks consequential damages, consists of 41,589 square feetin two small subparcels located roughly to the northwest and northeast, respectively, ofsubparcel A3, which are known as subparcels A2 and A4, and a 331,562 square foot subparcel,designated as subparcel A1, which is located south of subparcel A3. As the State recognizes inits brief, there is no dispute as to the value of subparcels A2, A3, and A4.
"It is well settled that the measure of damages for a partial taking of real property is thedifference between the value of the whole property before the taking and the value of theremainder after the taking . . . Consequential damages are measured by thedifference between the before and after values, less the value of the land and improvementsappropriated. The measure of damages must reflect the fair market value of the property in itshighest and best use on the date of the taking, regardless of whether the property is being put tosuch use at the time" (Chemical Corp. v Town of E. Hampton, 298 AD2d 419, 420[2002] [citations omitted]). "In determining an award to an owner of condemned property, thefindings must either be within the range of expert testimony, or be supported by other evidenceand adequately explained by the court" (Matter of City of New York [Reiss], 55 NY2d885, 886 [1982]; see Estate of Dresner v State of New York, 262 AD2d 274, 275[1999]).
Here, the parties presented conflicting expert testimony regarding the highest and best use ofsubparcel A1 both prior to and after the appropriation. The Court of Claims correctly rejected theconclusion reached by the claimant's appraiser because he was mistaken as to the applicablezoning and the record failed to support his finding that the wetlands on the parcel would have noimpact on its potential development. The Court of Claims also correctly rejected the conclusionreached by the State's appraiser, who found that the highest and best use of subparcel A1 wouldbe achieved by combining it with adjoining parcels to increase their development potential,which would not, in his view, impair the value of subparcel A1. The Court of Claims correctlyfound this approach to be speculative (see Matter of City of New York [Rudnick], 25NY2d 146, 149 [1969]; Matter of HBP Assoc. v County of Orange, 277 AD2d 237[2000]).
Having rejected the approaches taken by the parties' appraisers, the Court of Claims reachedits determination as to the value of subparcel A1 by finding that the highest and best use ofsubparcel A1 prior to the appropriation was as a "minimal-impact warehouse or storage facility"and that after the appropriation subparcel A1 was inaccessible, leaving it with only a nominalvalue, postappropriation, of $.30 per square foot. There was nothing in the record, however, tosupport this finding as to the highest and best use of the property. Since the record is insufficientto render a determination as to the value of subparcel A1, a new trial is required with respect tothat issue (see Matter of County of Suffolk v Kalimnios, 275 AD2d 455, 456-457 [2000];Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280, 282 [1994]). Because thesuitability of access is "directly related to the highest and best use of the property" (Priestly vState of New York, 23 NY2d 152, 156 [1968]), that issue must be addressed at the new trialas well.
The State's contention that the Court of Claims erroneously awarded compensation for theappropriation of the monument sign is without merit (see Cooney Bros. v State of NewYork, [*3]24 NY2d 387, 392-393 [1969]; McDonald vState of New York, 52 AD2d 721, 722 [1976], affd 42 NY2d 900 [1977]). Rivera,J.P., Spolzino, Angiolillo and Balkin, JJ., concur.