City of Long Beach v. Sun NLF Ltd. P'ship

• Decision Date: 14 January 2015
• Citation: 124 A.D.3d 654,1 N.Y.S.3d 246
• Parties: In the Matter of CITY OF LONG BEACH, appellant, v. SUN NLF LIMITED PARTNERSHIP, respondent-respondent, et al., respondents.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 654

1 N.Y.S.3d 246

In the Matter of CITY OF LONG BEACH, appellant,

v.SUN NLF LIMITED PARTNERSHIP, respondent-respondent, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 14, 2015.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Robert A. Spolzino, Mathew T. Dudley, and Eliza M. Scheibel of counsel), for appellant.

Koeppel Martone & Leistman, LLP, Mineola, N.Y. (Donald F. Leistman, Jason M. Penighett, and Michael P. Guerriero of counsel), for respondent-respondent.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In a condemnation proceeding, the condemnor, City of Long Beach, appeals from a judgment of the Supreme Court, Nassau County (Adams, J.), dated November 5, 2012, which, upon a decision of the same court dated October 3, 2012, made after a nonjury trial, is in favor of the claimant and against it in the principal sum of $11,800,000.

ORDERED that the judgment is affirmed, with costs.

The claimant, Sun NLF Limited Partnership, owned three non-contiguous, undeveloped parcels of real property in the City of Long Beach (hereinafter the City), identified as parcels 1, 11, and 13. The City commenced condemnation proceedings with respect to the claimant's properties and other properties constituting the Long Beach "Superblock." The petition was granted, and title vested in the City in April 2006. The claimant filed a claim seeking just compensation for the taking. After a nonjury trial, the Supreme Court adopted the claimant's appraisal for parcel 1, and determined that the highest and best use of parcels 11 and 13 was as assembled with parcel 12, which was a narrow parcel of land located in between them, for multi-family development. The Supreme Court determined that the sum of $11.8 million constituted just compensation for parcels 1, 11, and 13. Judgment was entered in favor of the claimant and against the City in that principal sum. The City appeals.

The measure of damages in a condemnation proceeding " ‘must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time’ " ( Chester Indus. Park Assoc., LLP v. State of New York, 65 A.D.3d 513, 514, 884 N.Y.S.2d 243, quoting Chemical Corp. v. Town of E. Hampton, 298 A.D.2d 419, 420, 748 N.Y.S.2d 606 ). "The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future" ( Yaphank Dev. Co. v. County of Suffolk, 203 A.D.2d 280, 281, 609 N.Y.S.2d 346 ; see Matter of City of New York [Broadway Cary Corp.], 34 N.Y.2d 535, 536, 354 N.Y.S.2d 100, 309 N.E.2d 870 ; Matter of Consolidated Edison Co. of N.Y. v. Neptune Assoc., 190 A.D.2d 669, 593 N.Y.S.2d 259 ). " ‘The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value’ " (Matter of Metropolitan Transp. Auth., 86 A.D.3d 314, 320, 927 N.Y.S.2d 67, quoting Olson v. United States, 292 U.S. 246, 256, 54 S.Ct. 704, 78 L.Ed. 1236 ). "Thus, a claimant is entitled to the fair market value of its property for its highest and best available use even though that use is in connection with adjoining properties, provided there is a reasonable probability that the condemned property would be combined with other tracts in the reasonably near future" ( Matter of Metropolitan Transp. Auth., 86 A.D.3d at 320, 927 N.Y.S.2d 67 ).

Contrary to the City's contention, the Supreme Court properly determined that the highest and best use of parcels 11 and 13 was as assembled with parcel 12 for multi-family development. The claimant's experts testified that the immediate area was predominately multi-family, multi-storied dwellings, and that it was not practical to construct single- or two-family homes on parcels 11 or 13, which were located along the City's boardwalk. The City's appraiser conceded that there was no use for parcel 12 other than in an assemblage with the adjoining lots and appraised that parcel with a highest and best use in such an assemblage. While the property owners did not privately assemble the properties in the years preceding the...