90 Front St. Associates, LLC v. State

Decision Date07 December 2010
Citation79 A.D.3d 708,912 N.Y.S.2d 294
Parties90 FRONT STREET ASSOCIATES, LLC, et al., appellants, v. STATE of New York, respondent.
CourtNew York Supreme Court — Appellate Division

Siegel Fenchel & Peddy, P.C., Garden City, N.Y. (Saul R. Fenchel of counsel), for appellants.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Peter H. Schiff and Michael S. Buskus of counsel), for respondent.

PETER B. SKELOS, J.P., RANDALL T. ENG, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.

In a consolidated condemnation proceeding, the claimants appeal, on the ground of inadequacy, from a judgment of the Court of Claims (Lopez-Summa, J.), dated February 26, 2009, which, after a nonjury trial and upon a decision of the same courtdated October 7, 2008, is in favor of them and against the defendant in the principal sum of only $934,489.80.

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, with costs, and the matter is remitted to the Court of Claims for a new trial in accordance herewith, and thereafter, for entry of an amended judgment.

As relevant to the appeal in this consolidated condemnation proceeding, the State of New York appropriated title to a parcel of real property located at 90 Front Street, Mineola. Prior to the appropriation by the State, this parcel, and the contiguous parcel located at 98 Front Street, were owned by the claimants, 90 Front Street Associates, LLC (hereinafter 90 Front), and 98 Front Street Associates, LLC (hereinafter 98 Front), respectively. These corporations were allegedly 100% owned by nonparties Clara Salvati, and her brother, Benjamin Silvestrone, the prior owners, as tenants in common, of the subject properties. After learning of the impending takings, 98 Front sold its property to nonparty Torsangie Properties, Ltd. (hereinafter Torsangie), on June 10, 2002. The State's taking of the fee interest in 90 Front Street vested on September 11, 2003. At the ensuing trial on the issue of condemnation damages, the Court of Claims determinedthat the claimants failed to establish unity of ownership and unity of use of the two parcels as of the date the taking vested and the claimants, therefore, failed to demonstrate the propriety of valuing the two parcels as a single economic unit. Accordingly, the Court of Claims rejected the claimants' appraisal of value and, concomitantly, their estimation of damages from the taking of title to 90 Front Street, which were based upon a highest and best use of the property as a vacant parcel unified with 98 Front Street and available for development. The Court of Claims awarded condemnation damages based upon the State's appraisal. The claimants appeal from the judgment on the ground that the award of damages incurred as a result of the taking of the fee interest in 90 Front Street was inadequate.

To establish the propriety of valuing two separate parcels of property as a single economic unit for the purpose of awarding condemnation damages, "the property owner must show that the subject parcels are contiguous, and that there is a unity of use and of ownership" ( Johnson v. State of New York, 10 A.D.3d 596, 597, 781 N.Y.S.2d 764; see Matter of Town of Brookhaven v. Gold, 89 A.D.2d 963, 965, 454 N.Y.S.2d 111; Erly Realty Dev. v. State of New York, 43 A.D.2d 301, 303-304, 351 N.Y.S.2d 457; Guptill Holding Corp. v. State of New York, 20 A.D.2d 832, 247 N.Y.S.2d 800). "The general rule in New York is that a property condemned by the government is valued as ofthe date of its actual taking" ( Matter of County of Nassau v. 408 Realty Corp., 283 A.D.2d 644, 644, 725 N.Y.S.2d 95; see Matter of City of New York [ Salvation Army ], 43 N.Y.2d 512, 518, 402 N.Y.S.2d 804, 373 N.E.2d 984). Here, it is undisputed that on the date the fee taking vested, 98 Front Street was owned by an entity unrelated to the claimants. Nevertheless, the Court of Appeals has held that where the sale of a portion of a claimant's property prior to the vesting of an appropriation by the State "was in time and substance so clearly referrable to the appropriation as...

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12 cases
  • In re Acquisition of Real Prop. By the Cnty. of Warren. Forest Enters. Mgmt., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • 9 Abril 2020
    ...895, 896–897, 943 N.Y.S.2d 575 [2012], lv denied 20 N.Y.3d 852, 2012 WL 5845649 [2012] ; 90 Front St. Assoc., LLC v. State of New York, 79 A.D.3d 708, 710, 912 N.Y.S.2d 294 [2010] ). To find unity of use, there must be a "reasonable probability that its asserted use could or would have been......
  • Vill. of Port Chester v. Bologna
    • United States
    • New York Supreme Court — Appellate Division
    • 1 Mayo 2012
  • Vill. of Haverstraw v. Ray River Co.
    • United States
    • New York Supreme Court — Appellate Division
    • 24 Febrero 2021
    ...rule that a condemned property must be " ‘valued as of the date of its actual taking’ " ( 90 Front St. Assoc., LLC v. State of New York, 79 A.D.3d 708, 709–710, 912 N.Y.S.2d 294, quoting Matter of Nassau, County of v. 408 Realty Corp., 283 A.D.2d 644, 644, 725 N.Y.S.2d 95 ).The Supreme Cour......
  • Rose Park Place, Inc. v. State
    • United States
    • New York Supreme Court — Appellate Division
    • 2 Mayo 2014
    ... ... State of New York, 32 N.Y.2d 164, 167–168, 344 N.Y.S.2d 350, 297 N.E.2d 90,rearg. denied33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710 stands for the proposition that the ... of the taking, not by the acreage he or she once owned and had previously sold ( see also 90 Front St. Assoc., LLC v. State of New York, 79 A.D.3d 708, 710, 912 N.Y.S.2d 294). In view of that ... ...
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