| Matter of Board of Commr. of Great Neck Park Dist. of Town of N.Hempstead v Kings Point Hgts., LLC |
| 2010 NY Slip Op 04787 [74 AD3d 804] |
| June 1, 2010 |
| Appellate Division, Second Department |
| In the Matter of Board of Commissioners of Great Neck ParkDistrict of Town of North Hempstead, Respondent-Appellant, v Kings Point Heights,LLC, Appellant-Respondent. |
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In a condemnation proceeding, the claimant, Kings Point Heights, LLC, appeals, as limitedby its notice of appeal and brief, from stated portions of a judgment of the Supreme Court,Nassau County (McCabe, J.), entered February 7, 2008, which, upon a decision of the same courtdated November 15, 2007, made after a nonjury trial, inter alia, failed to award it severance orconsequential damages, and the condemnor, Board of Commissioners of Great Neck ParkDistrict of Town of North Hempstead, cross-appeals, as limited by its brief, from stated portionsof the same judgment which, among other things, awarded compensation for the taking ofunderwater lands.
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, withoutcosts or disbursements.
The subject property is located at 100 Kings Point Road and was known as section 1, block144, part of lots 50 and 51 on the Nassau County Land and Tax Map. The total area of thesubject property prior to the taking was 6.243 acres, which included an underwater areaaccounting for 0.956 acres. The condemned area amounted to 2.388 acres of waterfront propertyand included the 0.956 underwater area. The area of remainder was 3.822 acres. The subjectproperty was zoned A2 Residential by the Village of Kings Point, with a 40,000-square-footminimum lot size.
In a resolution dated December 4, 2000, the Village of Kings Point Planning Board grantedfinal plat approval for the subdivision of the subject property into four parcels. On January 10,2001, the Great Neck Park District of the Town of North Hempstead (hereinafter the ParkDistrict) passed a resolution, after a hearing, to acquire by condemnation certain land for parkpurposes. Title to the subject property vested in the Park District on May 23, 2001. On June 4,2001, Kings Point Heights, LLC (hereinafter the claimant), filed a notice of claim, seeking justcompensation.
The primary issue on appeal is whether the claimant is entitled to recover consequential orseverance damages based on the alleged loss in value of the subdivided property. [*2]The condemnor's appraiser concluded that there were noconsequential damages, while the claimant's appraiser concluded that the claimant was entitledto consequential damages in the sum of $2,195,000, in addition to direct damages in the sum of$2,950,000.
The measure of damages for a partial taking of real property is the difference between thevalue of the whole property before the taking and the value of the remainder after the taking(see Diocese of Buffalo v State of New York, 24 NY2d 320 [1969]; Chester Indus. Park Assoc., LLP v State ofNew York, 65 AD3d 513, 514-515 [2009]; Chemical Corp. v Town of E.Hampton, 298 AD2d 419, 420-421 [2002]). Consequential damages are measured by thedifference between the before and after values of the property, less the value of the land andimprovements appropriated (see Diocese of Buffalo v State of New York, 24 NY2d 320[1969]; Chester Indus. Park Assoc., LLP v State of New York, 65 AD3d at 514-515;Chemical Corp. v Town of E. Hampton, 298 AD2d at 420-421). The measure ofdamages must reflect the fair market value of the property in its highest and best use on the dateof the taking, regardless of whether the property is being put to such use at the time (seeMatter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1, 8 [1978];Chemical Corp. v Town of E. Hampton, 298 AD2d at 420-421; Matter of County ofSuffolk v Kalimnios, 275 AD2d 455 [2000]). "It is widely accepted that a partial taking doesnot in itself cause a consequential loss . . . Damages for such a loss must be basedupon either the opinion of an experienced, knowledgeable expert . . . or on actualmarket data showing a reduction in the value of the remainder as a result of the appropriation"(Zappavigna v State of New York, 186 AD2d 557, 560 [1992]).
"In determining an award to an owner of condemned property, the findings must either bewithin the range of the expert testimony or be supported by other evidence and adequatelyexplained by the court" (Matter of City of New York [Reiss], 55 NY2d 885, 886 [1982],on remand 89 AD2d 894 [1982], affd 58 NY2d 817 [1983]; see Matter of Newtown Cr. WaterPollution Control Plant Upgrade, 65 AD3d 1241, 1242 [2009]; Matter of Town ofIslip v Mustamed Assoc., 222 AD2d 682 [1995]; Matter of Town of Islip v Sikora,220 AD2d 434, 435-436 [1995]). Where the trial court's explanation of its award is supported bythe evidence, it is entitled to deference and will not be disturbed on appeal (see Matter of Town of E. Hampton[Windmill II Affordable Hous. Project (9 Parcels)], 44 AD3d 963, 964 [2007]; Matter of Village of Port Chester, 43AD3d 943, 944 [2007]; 627 Smith St. Corp. v Bureau of Waste Disposal of Dept. ofSanitation of City of N.Y., 289 AD2d 472, 474 [2001]; Matter of Town of Islip vMustamed Assoc., 222 AD2d 682 [1995]; Matter of Town of Islip v Sikora, 220AD2d at 435-436).
Here, it was undisputed that the highest and best use of the property was as a residentialsubdivision. The claimant's appraiser concluded that having the waterfront parcel utilized as apublic park diminished the values of the remaining parcels because it reduced the privacy ofthose parcels, and the owners of the remaining parcels had no control over the use of the takenproperty. However, the condemnor's appraiser concluded that the remaining parcels which couldbe considered part of the same tract (see Pedersen v State of New York, 50 AD2d 1004,1005 [1975]) were enhanced by the existence of the park because it provided the remainingparcels with an unimpeded view of Long Island Sound since there were restrictions on its use.
The Supreme Court concluded that the claimant was entitled to direct damages in the sum of$2,950,000, the value of the condemned property as determined by the claimant's appraiser.However, the Supreme Court agreed with the condemnor's appraiser that the remaining propertywas enhanced by the existence of a park on the condemned property. Pursuant to New York law,the Supreme Court was precluded from taking that enhanced value into account in rendering theaward (see Matter of City of New York [Consolidated Gas Co. of N.Y.], 190 NY 350,360 [1907]; Done Holding Co. v State of New York, 144 AD2d 528, 529 [1988]). As theSupreme Court's damage award was "within the range of the expert testimony" and "adequatelyexplained by the court," there is no reason to disturb it on this appeal (Matter of City of NewYork [Reiss], 55 NY2d at 886; see Matter of Town of E. Hampton [Windmill IIAffordable Hous. Project (9 Parcels)], 44 AD3d at 964; Matter of Village of PortChester, 43 AD3d at 944; 627 Smith St. Corp. v Bureau of Waste Disposal of Dept. ofSanitation of City of N.Y., 289 AD2d at 474; Matter of Town of Islip v MustamedAssoc., 222 AD2d at 682-683; Matter of Town of Islip v Sikora, 220 AD2d at435-436).
Contrary to the condemnor's contention, the Supreme Court correctly determined that [*3]the claimant held title to underwater land in the Long Island Soundpursuant to letters patent dated 1917 (see Public Lands Law §§ 4 and 75).Accordingly, the claimant was entitled to compensation for this land (see Public LandsLaw § 75 [9]).
The parties' remaining contentions either are without merit or need not be addressed in lightof our determination. Dillon, J.P., Balkin, Lott and Sgroi, JJ., concur.