Scheur v. State

• Decision Date: 03 November 1978
• Docket Number: No. 1,No. 59172-A,59172-A,1
• Citation: Scheur v. State, 410 N.Y.S.2d 457, 65 A.D.2d 921 (N.Y. App. Div. 1978)
• Parties: S. Robert SCHEUR, as Trustee for Barry Scheur and Larry Scheur under the Last Will and Testament for Nathan Scheur, Respondent, v. The STATE of New York, Appellant. ClaimAppeal
• Court: New York Supreme Court — Appellate Division

Page 457

410 N.Y.S.2d 457

65 A.D.2d 921

S. Robert SCHEUR, as Trustee for Barry Scheur and Larry Scheur under the Last Will and Testament for Nathan Scheur, Respondent, v.The STATE of New York, Appellant. Claim No. 59172-A. Appeal No. 1.

Supreme Court, Appellate Division, Fourth Department.

Nov. 3, 1978.

Louis J. Lefkowitz, Atty. Gen., Albany, for appellant, by Vernon Stuart, Albany.

Saperston, Wiltse, Day & Wilson, Buffalo, for respondent, by John L. Kirschner, Buffalo.

Before MARSH, P. J., and CARDAMONE, SIMONS, DILLON and SCHNEPP, JJ.

MEMORANDUM:

The State appeals from two judgments of the Court of Claims which granted claimants, respectively, $265,262.57 and $626,971.78 for the appropriation of two pieces of real property in connection with the construction of the Niagara Frontier Transportation Authority Transportation Center in the City of Buffalo.

The court correctly valued the properties as a single tract based upon the unity of ownership (Kessler v. State of New York, 21 A.D.2d 568, 251 N.Y.S.2d 487) and there is no dispute that the highest and best use of the subject property was as an assemblage of cleared vacant land for commercial development.The evidence amply established a reasonable probability that the property would be put to such use in the near future (Matter of City of New York (Broadway Cary Corp.), 34 N.Y.2d 535, 354 N.Y.S.2d 100, 309 N.E.2d 870;City of N.Y. (Shorefront H.S.-Rudnick), 25 N.Y.2d 146, 149, 303 N.Y.S.2d 47, 49, 350 N.E.2d 333, 334;Triple Cities Shopping Center, Inc. v. State of New York, 26 A.D.2d 744, 272 N.Y.S.2d 207, affd.22 N.Y.2d 683, 291 N.Y.S.2d 801, 238 N.E.2d 912;Hewitt v. State of New York, 18 A.D.2d 1128, 239 N.Y.S.2d 522), notwithstanding the claimants' appraiser's opinion that the subject property could continue its current use for a brief interim period while development plans were finalized.In this regard the State's reliance upon Liere v. State of New York, 39 A.D.2d 980, 333 N.Y.S.2d 266 is misplaced.In Liere, unlike the case at bar, there was evidence that the market for the subject property at its proposed highest and best use would not come into being for several years.Moreover, consistent with its finding of highest and best use, the court here properly deducted from the award for the land the cost of demolishing the existing structures.

The court was incorrect in determining that the subject parcels, constituting 80% Of a city block, had the highest and best use as an assemblage with two other properties, making up the balance of the block.There was no probative evidence to support the conclusion that the other properties were available to form an assemblage with the subject parcels (seeMatter of City of Rochester v. Iman, 51 A.D.2d 651, 378 N.Y.S.2d 203).We find the error insignificant, however, because it did not demonstrably affect the ultimate result (seeWest Seneca Central School District v. State of New York, 60 A.D.2d 760, 400 N.Y.S.2d 611).

In reaching their respective opinions concerning value, the appraisers for both the claimants and the State used the market data approach.The court improperly rejected the State appraiser's valuations of comparable assemblage...