Eisen v. Westchester County

• Decision Date: 30 April 1979
• Citation: Eisen v. Westchester County, 415 N.Y.S.2d 888, 69 A.D.2d 895 (N.Y. App. Div. 1979)
• Parties: Julius EISEN et al., Appellants-Respondents, v. The COUNTY OF WESTCHESTER, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 888

415 N.Y.S.2d 888

69 A.D.2d 895

Julius EISEN et al., Appellants-Respondents, v.The COUNTY OF WESTCHESTER, Respondent-Appellant.

Supreme Court, Appellate Division, Second Department.

April 30, 1979.

Friedman & Gass, P. C., New York City(Arthur S. Friedman, New York City, of counsel), for appellants-respondents.

Samuel S. Yasgur, County Atty., White Plains(Lester D. Steinman, Jonathan Lovett and Thomas P. O'Callaghan, White Plains, of counsel), for respondent-appellant.

Before RABIN, J. P., and SHAPIRO, COHALAN and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In an action to enjoin defendant from channeling and diverting waters onto plaintiffs' land and for money damages, the parties cross-appeal from a judgment of the Supreme Court, Westchester County, entered May 26, 1978, which, after a nonjury trial, awarded plaintiffs the sum of $162,249, plus interest, costs and disbursements.

Judgment modified, on the law and the facts, by reducing the award to $121,882, plus interest, costs and disbursements.As so modified, judgment affirmed, with costs to the county, and action remitted to Trial Term for entry of an appropriate amended judgment.

The measure of damages in a trespass action is the diminution in the rental or usable value of the premises caused by the trespass, taking the property as is and as zoned (Tallman v. Metropolitan El. R.R Co., 121 N.Y. 119, 23 N.E. 1134;Rumsey v. New York & New England R.R. Co., 133 N.Y. 79, 30 N.E. 654).Hence, the trial court erred in considering evidence on the reasonable probability of a rezoning.Even if such evidence were admissible, it is clear that plaintiffs failed to prove such a reasonable probability.The trial court's finding of a reasonable probability that a portion of the property might be granted a use variance is similarly infirm on the above-mentioned grounds.Furthermore, it is clear from the record...