New York State Elec. & Gas Corp. v. Hotel Gibber, Inc.

• Decision Date: 27 October 1967
• Citation: 28 A.D.2d 1042,283 N.Y.S.2d 740
• Parties: , 71 P.U.R.3d 367 NEW YORK STATE ELECTRIC & GAS CORPORATION, Appellant, v. HOTEL GIBBER, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 740

283 N.Y.S.2d 740

28 A.D.2d 1042, 71 P.U.R.3d 367

NEW YORK STATE ELECTRIC & GAS CORPORATION, Appellant, v. HOTEL GIBBER, INC., et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Oct. 27, 1967.

Naylon, Aronson, Huber & Magill, New York City, Roderick Schutt, New York City, of counsel, Wiess & Costa, Monticello, for appellant.

Goldstein & Goldstein, David Farber, Monticello, for respondents.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GABRIELLI, JJ.

GABRIELLI, Justice.

Appeal from an order and judgment of the Supreme Court, Sullivan County, entered June 14, 1966, which confirmed an award for the taking of 3.19 acres of land for a power transmission line. The award by the Commissioners of Appraisal of $3,200 for the fee taking is not questioned by plaintiff-appellant and the sole question presented upon this appeal is the award of $10,000 for consequential damages. Although respondents had cross appealed they have asked for an affirmance of the judgment.

Respondent corporation owned a rectangular parcel of 96.3 acres upon which it operates a resort hotel. The land acquired by the present proceeding consists of a strip of land 100 feet wide and some 1400 feet in length crossing respondents' lands. Upon this appeal it is urged that the report of the Commissioners lacks any substance in fact and should be disaffirmed as a matter of law. With this contention, we cannot agree. Being strictly circumscribed as we are in reviewing awards made by Commissioners of Appraisal, we cannot say upon the record before us that the award was so shocking as to warrant interference on our part. The power of the courts to review such awards is strictly limited, and every intendment is in favor of the action of the commission (Matter of Huie (Fletcher-City of New York), 2 N.Y.2d 168, 157 N.Y.S.2d 957, 139 N.E.2d 140; New York State Electric & Gas Corporation v. Moratto, 25 A.D.2d 913, 270 N.Y.S.2d 44). Unless the findings are so grossly inadequate as to prevent adequate judicial review or the award is so unreasonable as to shock our conscience, we cannot disturb the award. We cannot say that the report is not so sufficiently specific as to permit proper review. In fact, as here, many factors are properly considered. The court in Matter of Huie (Fletcher-City of New York) (supra), clearly stated the criteria to be used in these cases when, at page 171, 157 N.Y.S.2d at page 960, 139 N.E.2d at page 142, it said:

'In the determination of that just compensation, there is no single element which is controlling, and it is competent for the commissioners of apprasial to consider all factors indicative of the value of the property, such as its fair market value as of the date of appropriation (Matter of Board of Water Supply of City of N.Y., 277 N.Y. 452, 456--458, 14 N.E.2d 789, 791--792), the reproduction cost of improvements less depreciation (Matter of City of New York (Blackwell's Is. Bridge), 198 N.Y. 84, 91 N.E. 278, 41 L.R.A.,N.S., 411),...