| Matter of Village of Dobbs Ferry v Stanley Ave. Props., Inc. |
| 2012 NY Slip Op 03656 [95 AD3d 1027] |
| May 8, 2012 |
| Appellate Division, Second Department |
| In the Matter of Village of Dobbs Ferry,Appellant, v Stanley Avenue Properties, Inc., Respondent, et al.,Respondents. |
—[*1] Gaines, Gruner, Ponzini & Novick, LLP, White Plains, N.Y. (Steven H. Gaines and DeniseM. Cossu of counsel), for respondent-respondent.
In a condemnation proceeding, the petitioner, the Village of Dobbs Ferry, appeals from (1) anorder of the Supreme Court, Westchester County (LaCava, J.), entered September 14, 2010,which denied its motion to deem, as abandoned under 22 NYCRR 202.48, the compensationaward to Stanley Avenue Properties, Inc., described in a decision of the same court (Dickerson,J.), entered November 8, 2007, made after a nonjury trial and granted the cross motion of StanleyAvenue Properties, Inc., pursuant to CPLR 5016 (c) for leave to enter a judgment on the decisionentered November 8, 2007, against it and in favor of Stanley Avenue Properties, Inc., in theprincipal sum of $1,392,750, and (2) a judgment of the same court dated October 5, 2010, which,upon the decision and upon the order, is against it and in favor of Stanley Avenue Properties,Inc., in the principal sum of $1,392,750.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to Stanley Avenue Properties, Inc.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with entry of judgment in the proceeding (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The undeveloped property at issue in this partial-taking condemnation proceeding consistedof 10.11 acres pre-taking, and 7.53 acres post-taking. Both the claimant, Stanley AvenueProperties, Inc. (hereafter Stanley Avenue), and the petitioner, the Village of Dobbs Ferry, agreedthat a residential subdivision was the highest and best use of the subject property. At the nonjurytrial held in this matter, however, Stanley Avenue and the Village offered opposing evidence asto [*2]the density and scope of the subdivision that could be builton the property. The trial court ultimately credited the evidence proffered by Stanley Avenue thatit was reasonably probable that the entire 10.11 acres of the subject property could have beendeveloped as a 38-unit subdivision prior to the partial taking, and that the entire remaining 7.53acres could have been developed as a 21-unit subdivision, and, upon utilizing an average value ofthe so-called "comparables" offered by the Village's appraiser, issued a condemnation awardaccordingly.
As a general proposition, 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 (see Diocese of Buffalo v State of New York, 24 NY2d 320,323 [1969]; Chemical Corp. v Town of E. Hampton, 298 AD2d 419, 420 [2002]). Themeasure of damages must reflect the fair market value of the property in its highest and best useregardless of whether the property is being used in that fashion at the time (see Matter of Board of Commr. of GreatNeck Park Dist. of Town of N. Hempstead v Kings Point Hgts., LLC, 74 AD3d 804[2010]; Chemical Corp. v Town of E. Hampton, 298 AD2d at 420; 627 Smith St.Corp. v Bureau of Waste Disposal of Dept. of Sanitation of City of N.Y., 289 AD2d 472,473 [2001]). It is necessary to show that there is a reasonable possibility that the property'shighest and best asserted use could or would have been made within the reasonably near future,and a use which is no more than a speculative or hypothetical arrangement may not be acceptedas the basis for an award (see Matter of City of New York [Broadway Cary Corp.], 34NY2d 535, 536 [1974]; Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280, 281[1994]; see also Matter of John Jay Coll.of Criminal Justice of the City Univ. of N.Y., 74 AD3d 460 [2010]). Contrary to theVillage's contention, we discern no basis to disturb the trial court's determination as to theproperty's pre- and post-taking highest and best uses (cf. Matter of City of New York[Rudnick], 25 NY2d 146 [1969]).
The Village's contention that the trial court erred in denying its motion to dismiss thecompensation award as abandoned pursuant to 22 NYCRR 202.48 is without merit, becausethere was no direction in the decision after trial to settle or submit judgment on notice, and therelief awarded was solely monetary in nature (see Funk v Barry, 89 NY2d 364, 366[1996]; Matter of Eckerd Corp. vBurin, 83 AD3d 1239, 1241 [2011]; Russo v Russo, 289 AD2d 467, 468[2001]).
The Village's remaining contentions are without merit. Rivera, J.P., Chambers, Austin andRoman, JJ., concur. [Prior Case History: 29 Misc 3d 1205(A), 2010 NY Slip Op51701(U).]