Alexander v. State

• Decision Date: 16 March 1971
• Citation: 36 A.D.2d 777,319 N.Y.S.2d 219
• Parties: Elizabeth ALEXANDER et al., Respondents, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 219

319 N.Y.S.2d 219

36 A.D.2d 777

Elizabeth ALEXANDER et al., Respondents, v. STATE of New York, Appellant.

Supreme Court, Appellate Division, Third Department.

March 16, 1971.

Lee Alexander, Binghamton (Frank A. Nemia, Binghamton, of counsel), for respondents.

Louis J. Lefkowitz, Atty. Gen. (Henderson G. Riggs, Albany, of counsel), for appellant.

Before REYNOLDS, J.P., and STALEY, SWEENEY, GREENBLOTT and COOKE, JJ.

MEMORANDUM DECISION.

Appeal by the State from a judgment of the Court of Claims, entered April 14, 1969, which awarded claimants $237,584 plus interest as damages for the appropriation of 13.5 acres of land for highway purposes.

The appropriated property, which was taken in its entirety, was vacant land located about 500 feet north of the City of Binghamton adjacent to Interstate Route 81. The Chenango River flows to the east. The property was zoned commercial, but had never been developed. The primary issue presented for our determination is a narrow one, i.e., whether it was error for the trial court to arrive at the market value of the subject property, which was approximately eight feet below the flood level of the river and subject to flooding, by using its value as if it were above maximum flood level and then deducting the cost to fill. Both appraisers used this method and it was adopted by the court. Both appraisers agreed that the highest and best use of the property was for commercial development. This was also adopted by the court. It is the State's contention that the method used was unsound and speculative, and consequently the award cannot stand.

There is no question but that the land's highest and best use at the time of the taking was for potential commercial purposes. We conclude, however, that the method of valuation adopted by the trial court was improper. Although there is evidence of commercial development in the immediate vicinity, we find a total absence in the record of any plans whatsoever for the subject property's being put to a commercial use 'within the reasonably close future'. (Triple Cities Shopping Center, Inc. v. State of New York, 26 A.D.2d 744, 745, 272 N.Y.S.2d 207, 208--209, affd. 22 N.Y.2d 683, 291 N.Y.S.2d 801, 238 N.E.2d 912.) The correct rule to be applied in this case is to treat the property as raw land giving the acreage an increment value because of its potential commercial use. (Hewitt v. State of New York, 18 A.D.2d 1128, 239 N.Y.S.2d 522.) Since there is no evidence in the record to sustain the award on any basis, there should be a new trial. Claimants, however, maintain that the State has no right to present this issue for the first time on this appeal. With this contention we do not agree. It is well established that in the interest of justice we have the right to reverse a judgment and grant a new trial where there is fundamental trial error, even though no objection was taken at the trial. (7 Weinstein-Korn-Miller, N.Y.Civ.Prac. 5501.11, p. 55--22.) Since both parties proceeded on the same erroneous theory of evaluation and contributed to the court's error, in the interest of justice, a new trial may be ordered. (Guthmuller v. State of New York, 23 A.D.2d 597, 256 N.Y.S.2d 526; Getty Oil Co. v. State of New York, 33 A.D.2d 705, 304 N.Y.S.2d 701.)

Judgment reversed, on the law and the facts, and a new trial ordered, without costs.

REYNOLDS, J.P., and STALEY and SWEENEY, JJ., concur.

GREENBLOTT and COOKE, JJ., dissent and vote to affirm in a memorandum by GREENBLOTT, J I dissent and vote to affirm. The State should not be permitted to raise belatedly the issue that an erroneous theory of valuation was utilized by both the State and claimants' experts. Throughout this proceeding, including the required exchange of appraisals, the discovery procedures and the trial, the State presented and relied upon the same method of valuation used by the claimants. Now it attempts to reject the entire trial 'as a matter of law'. We should not base our disposition of an appeal upon a theory which was not presented to the court below, since this alleged error could have been remedied if attention had been directed to it on the trial. '(W)hen the State, without objection, acquiesces in the method of proof adopted by a claimant and thereafter undertakes to use the same formula of proof it should not be permitted, on appeal, to complain as to the probative value of the evidence offered in support of the...