Rodman v. State

Decision Date04 March 1985
Citation485 N.Y.S.2d 842,109 A.D.2d 737
PartiesAnn RODMAN, et al., Appellants, v. The STATE of New York, Respondent.
CourtNew York Supreme Court — Appellate Division

David Marcus, White Plains (Arthur Gutekunst, Brooklyn, of counsel), for appellants.

Robert Abrams, Atty. Gen., New York City (Peter J. Dooley and Dennis Hurley, New York City, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a condemnation proceeding, claimants appeal from a judgment of the Court of Claims, dated August 9, 1983, which is in favor of the State and against them in the principal sum of $19,700, with interest, the amount by which advance payments made to them by the State exceeded the sum awarded to them as compensation for the taking.

Judgment affirmed, without costs or disbursements.

This case revolves essentially on resolution of complex facts involving the history of town zoning, planning and flood plain designations, maps underlying those histories, and a study of surrounding property usages. Claimants contended that at the time of the taking there was a reasonable probability of rezoning of 46,420 square feet (Economic Unit A) of its subject property from "PI" (Planned Industry) to "GB" (General Business) commercial zoning and that the trial court in its award should have accordingly given an enhancement in value to Economic Unit A for that alleged reasonable probability.

The burden of proving that probability rested upon claimants and the existence of such a reasonable probability is a question of fact (Rebrug Corp. v. State of New York, 42 A.D.2d 801, 346 N.Y.S.2d 452; Maloney v. State of New York, 48 A.D.2d 755, 368 N.Y.S.2d 338).

At bar, we find that, although claimants presented a careful and thorough case, the evidence was closely, cogently and correctly scrutinized and evaluated by the trial court and that claimants did not establish that there was a reasonable probability of the asserted change of zoning (Rebrug Corp. v. State of New York, supra; Maloney v. State of New York, supra ). Accordingly, the judgment is affirmed.

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6 cases
  • In re Auth.
    • United States
    • New York Supreme Court — Appellate Division
    • July 21, 2011
    ...203 [1976] ). Whether there was a reasonable probability of an assemblage is a question of fact ( see Rodman v. State of New York, 109 A.D.2d 737, 737, 485 N.Y.S.2d 842 [1985]; see also Matter of Consolidated Edison Co. of N.Y., Inc. v. City of New York, 8 N.Y.3d 591, 595–596, 838 N.Y.S.2d ......
  • W. Gates CIP, LLC v. State
    • United States
    • New York Supreme Court — Appellate Division
    • January 28, 2022
    ...showing (see DiGiacomo v. State of New York , 182 A.D.3d 977, 979, 122 N.Y.S.3d 807 [3d Dept. 2020] ; Rodman v. State of New York , 109 A.D.2d 737, 737, 485 N.Y.S.2d 842 [2d Dept. 1985] ) by a preponderance of the evidence (see Sixth Ave. R.R. Co. v. Metropolitan El. Ry. Co. , 138 N.Y. 548,......
  • In the Matter of The Application of The City of N.Y. Relative To Acquiring Title In Fee Simple Absolute To Certain Real Prop. Where Not Heretofore Acquired For the Grantwood Retention Basin Located In the Area Generally Bounded By Shotwell Ave. To the East v. the City of N.Y.
    • United States
    • New York Supreme Court
    • September 7, 2011
    ...a reasonable probability. County of Westchester v. State, 127 A.D.2d 556, 511 N.Y.S.2d 358 (2nd Dept. 1987); Rodman v. State, 109 A.D.2d 737, 485 N.Y.S.2d 842 (2nd Dept. 1985). In this summary judgment motion the CITY bears the burden of showing that it was not reasonably probable that the ......
  • Westchester County v. State, 67159
    • United States
    • New York Supreme Court — Appellate Division
    • February 2, 1987
    ...that the subject property would have, upon application, been rezoned by the local authorities (see generally, Rodman v. State of New York, 109 A.D.2d 737, 485 N.Y.S.2d 842; Maloney v. State of New York, 48 A.D.2d 755, 368 N.Y.S.2d 338; Rebrug Corp. v. State of New York, 42 A.D.2d 801, 346 N......
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1 books & journal articles
  • 9.1 II. Highest And Best Uses At Variance With EXIsting Zoning And/Or Other Regulations
    • United States
    • New York State Bar Association Condemnation Law & Procedures in NY Chapter 9 Highest and Best Use Defined and Applied (9.0 to 9.2)
    • Invalid date
    ...Rebrug Corp. v. State, 42 A.D.2d 801, 802, 346 N.Y.S.2d 425 (3d Dep’t 1973); see, e.g., Maloney, 75 Misc. 2d at 276; Rodman v. State, 109 A.D.2d 737, 737, 485 N.Y.S.2d 842 (2d Dep’t 1985). [352] Maston v. State, 11 A.D.2d 370, 372, 206 N.Y.S.2d 672 (3d Dep’t 1960), aff’d, 9 N.Y.2d 796, 215 ......

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