Salzberg v. State

• Decision Date: 08 July 1965
• Docket Number: No. 40171,40171
• Citation: 24 A.D.2d 664,261 N.Y.S.2d 212
• Parties: Murray M. SALZBERG, Respondent, v. The STATE of New York, Appellant. Claim
• Court: New York Supreme Court — Appellate Division

Page 212

261 N.Y.S.2d 212

24 A.D.2d 664

Murray M. SALZBERG, Respondent, v.The STATE of New York, Appellant.

Claim No. 40171.

Supreme Court, Appellate Division, Third Department.

July 8, 1965.

Golstein, Goldman & Kessler, Rochester, for respondent(David M. Levy, Rochester, argued).

Louis J. Lefkowitz, Atty. Gen., for appellant.

Before GIBSON, P. J., and HERLIHY, TAYLOR, AULISI, and HAMM, JJ.

HAMM, Justice.

Appeal from a judgment of the Court of Claims in an appropriation case, on the ground of excessiveness.

The Court found the value of a temporary easement to be $1850.The State's expert determined the damage at $1858 and the claimant submitted no evidence as to this item.We accept the Court's finding of $1850.

The Court found that the value of the subject property was $220,000 before the taking and $3850 after the taking and, in addition to $1850 for the easement, found that the claimant's damage was $216,150.Separate findings of the value of the land and the value of the building on the land were not made.However, for the purpose of this appeal the State accepts the claimant's unit value per square foot and the parties agree on a land valuation before appropriation of $125,800.The Court's valuation after the taking was for land alone.The claimant has not appealed from the award and the State's brief recites 'we now accept the Court's finding of $3850'.The issue thus becomes the value of the buildind on the taken property, $216,150 plus $3850 minus $125,800, or $94,200.

The claimant urged and the Court found that the 'highest and best use of claimant's property * * * was * * * [for] volume retail sales outlet and/or discount house operation.'The structure on the property was a powerhouse which had been vacated by the tenant power corporation in 1953 or 1954.The claimant's expert witness testified that the reproduction cost of the building was $346,100 and, after deducting 58% for physical, functional and economic depreciation, arrived at a value of $145,400.However, the record contains no evidence that the building, although a specialty in the sense that it was designed for a unique purpose, was capable of producing any income by use for the purposes for which constructed.On the contrary, the claimant's expert referred to the powerhouse as a 'single purpose building' which was 'no longer in need' and stated the building 'needed remodeling or tearing down, depending on how it could be best developed'.In these circumstances, where the claimant's testimony shows that the structure has no utility or value as a specialty, reproduction cost less depreciation is not an appropriate method of appraisal of value or, stated otherwise, a specialty which, in fact, concededly has no utility as such, may not be given a value by application of the reproduction method.

The claimant's expert also pursued another method of approach.After describing the massive brick and masonry building, he explained that a zoning ordinance made off-street parking mandatory and required provision of parking space for one car for every 600 feet of retail or office space.He conceded that the land owned by the claimant was inadequate to comply with the ordinance but...