Levitin v. State

• Decision Date: 02 December 1960
• Docket Number: No. 32773,32773
• Citation: 207 N.Y.S.2d 798,12 A.D.2d 6
• Parties: George LEVITIN and Lee Levitin, Claimants-Respondents-Appellants, v. STATE of New York, Appellant-Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 798

207 N.Y.S.2d 798

12 A.D.2d 6

George LEVITIN and Lee Levitin, Claimants-Respondents-Appellants, v.STATE of New York, Appellant-Respondent.

Claim No. 32773.

Supreme Court, Appellate Division, Third Department.

Dec. 2, 1960.

Louis J. Lefkowitz, Atty., Gen., of the State of New York(Paxton Blair, Solicitor General, Albany, Julius L. Sackman, Principal Atty., Albany, of counsel), for the State.

Cribari, Scapolito & Solinger, Mount Vernon, W. E. Cribari, Mount Vernon, and Jerome Beaudrias, Yonkers, for claimants-respondents-appellants.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

REYNOLDS, Justice.

Appeal by the State and cross appeal by the claimants, George Levitin and Lee Levitin from a judgment of the Court of Claims which awarded claimants the sum of $178,306 plus interest for damages for permanent appropriation of real property in the Village of Ardsley, Westchester County.

Prior to the taking the property consisted of 5.775 acres (251,560 square feet), which had been purchased in 1951 by the claimants at two cents a square foot for the purpose of developing it as a motel site.On June 1, 1954, 3.364 acres (146,564 square feet) located in the northeast section of the property was appropriated for the Thruway.This land was completely unimproved.Of the 146,564 square feet, 27,000 lay in a sewer easement and about 13,000 was in the bed of the Saw Mill River which meandered through the appropriated parcel.Part of the remaining 2.411 acres in the southwest section was occupied by a motel of 50 units which had been completed more than a year before the taking and was being operated at a profit under the name of Ardsley Acres Hotel Court.There was a motel plan which provided for 130 units with six separate structures to be erected, so that with landscaping it would have occupied the entire property.The appropriation in no way interfered with the operation of the completed 50 units, indeed, probably increased the occupancy because of a Thruway exit at this point.

The claimants put in a claim for $530,000 for the taking of the unimproved portion based entirely on a 'projected' capitalization of income evaluation, i. e., they estimated the net income of 129 units and one office, capitalized that estimate at 8% and reached a residual land value for the whole 5.775 acres of $700,000.From this was subtracted $170,000, the residual land value of the 2.411 acres remaining based on capitalization of the net income actually derived from the 50 units already operating.The remainder of $530,000 is urged here as the market value of the land taken.

Such a method of evaluation of vacant, unimproved land is completely unprecedented.There is no authority cited by claimants in support of it and none is to be found, for how can income be capitalized to produce a residual land value when the appropriated land is neither producing income nor equipped to produce such income?The fact that part of the entire parcel was producing income because of a business operated thereon is of no moment even if it be accepted that the highest and best use of the appropriated part would have been an extension of that business.SeeSparkill Realty...