Rag Herkimer, LLC v. Herkimer Cnty.

• Decision Date: 04 August 2022
• Docket Number: 461,CA 21-01611
• Citation: 208 A.D.3d 1016,173 N.Y.S.3d 96
• Parties: RAG HERKIMER, LLC, Plaintiff-Appellant, v. HERKIMER COUNTY, Defendant-Respondent. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1016

173 N.Y.S.3d 96

RAG HERKIMER, LLC, Plaintiff-Appellant,

v.HERKIMER COUNTY, Defendant-Respondent. (Appeal No. 2.)

461

CA 21-01611

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

Entered: August 4, 2022

LONGSTREET & BERRY, LLP, FAYETTEVILLE (MICHAEL J. LONGSTREET OF COUNSEL), FOR PLAINTIFF-APPELLANT.

THE WEST FIRM, PLLC, ALBANY (CHRISTOPHER W. RUST OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: In appeal No. 1, plaintiff appeals from a decision, entered after a bench trial on the issue of just compensation, determining that the fair market value of certain real property that had been acquired by defendant through eminent domain was $575,600. In appeal No. 2, plaintiff appeals from a judgment that, inter alia, restated the value of the property and awarded defendant costs and disbursements.

Inasmuch as no appeal lies from a mere decision, the appeal from the decision in appeal No. 1 must be dismissed (see Moyer v. Moyer , 198 A.D.3d 1384, 1384, 152 N.Y.S.3d 864 [4th Dept. 2021] ; Kuhn v. Kuhn , 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 [4th Dept. 1987] ). We affirm the judgment in appeal No. 2.

"Both the State and Federal Constitutions require that owners receive just compensation when private property is taken for public use" ( 520 E. 81st St. Assoc. v. State of New York , 99 N.Y.2d 43, 47, 750 N.Y.S.2d 833, 780 N.E.2d 518 [2002] ). Just compensation for a taking must be "determined according to the fair market value of the property in its highest and best use" ( Matter of City of New York [Rudnick] , 25 N.Y.2d 146, 148, 303 N.Y.S.2d 47, 250 N.E.2d 333 [1969] ). Here, contrary to plaintiff's assertion, we conclude that "the evidence supports [Supreme Court's] finding that the highest and best use of the property is [low-intensity] commercial, [and] that finding should not be disturbed" ( Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.] , 20 A.D.3d 168, 171, 796 N.Y.S.2d 503 [4th Dept. 2005] ; see Matter of Rochester Urban Renewal Agency v. Lee , 83 A.D.2d 770, 770, 443 N.Y.S.2d 479 [4th Dept. 1981] ; see generally Matter of FFT Senior Communities, Inc. v. Town of Canandaigua , 96 A.D.3d 1396, 1396, 945 N.Y.S.2d 892 [4th Dept. 2012], lv denied 20 N.Y.3d 856, 2013 WL 105374 [2013] ).

We also reject plaintiff's contention that the court erred in accepting comparable sales of defendant's expert rather than its expert's comparable sales. Whether to accept evidence of remote sales, such as those relied upon by plaintiff's expert, is a matter committed to the court's discretion and depends "on the nature and character of the property involved" ( Matter of Great Atl. & Pac. Tea Co. v. Kiernan , 42 N.Y.2d 236, 242, 397 N.Y.S.2d 718, 366 N.E.2d 808 [1977] ; see also Matter of General Elec. Co. v. Town of Salina , 69 N.Y.2d 730, 731, 512 N.Y.S.2d 359, 504 N.E.2d 686 [1986] ; Welch Foods v. Town of Westfield , 222 A.D.2d 1053, 1054, 635 N.Y.S.2d 400 [4th Dept. 1995] ; see generally Matter of Allied Corp. v. Town of Camillus , 80 N.Y.2d 351, 356, 590 N.Y.S.2d 417, 604 N.E.2d 1348 [1992], rearg denied 81 N.Y.2d 784, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1993] ). Here, the court did not abuse its discretion in rejecting the remote comparable sales of plaintiff's expert, which it concluded were derived from "strikingly different" markets. Further, although the comparable sales of defendant's expert "may leave much to be desired, the trial court could accept [them] as the best basis for evaluating the property and[,] with a proper adjustment for...