Vill. of Port Chester v. Bologna

• Decision Date: 01 May 2012
• Citation: 95 A.D.3d 895,2012 N.Y. Slip Op. 03454,943 N.Y.S.2d 575
• Parties: In the Matter of VILLAGE OF PORT CHESTER, etc., appellant-respondent; v. Dominick D. BOLOGNA, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03454

943 N.Y.S.2d 575

95 A.D.3d 895

In the Matter of VILLAGE OF PORT CHESTER, etc., appellant-respondent;

v.Dominick D. BOLOGNA, et al., respondents-appellants.

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

May 1, 2012.

Watkins & Watkins, LLP, White Plains, N.Y. (John E. Watkins, Jr., Liane V. Watkins, and Matthew S. Clifford of counsel), for appellant-respondent.

Goldstein, Rikon & Rikon, P.C., New York, N.Y. (Joshua H. Rikon, Michael Rikon, and Ashley B. Levi of counsel), for respondents-appellants.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

In a condemnation proceeding, the Village of Port Chester appeals, as limited by its brief, from stated portions of a judgment of the Supreme Court, Westchester County (LaCava, J.), dated January 20, 2011, which, upon a decision of the same court dated April 2, 2010, made after a nonjury trial, inter alia, awarded the claimants the principal sum of $3,062,000 as just compensation for the taking of the claimants' real property, and the claimants cross-appeal, as limited by their brief, from stated portions of the same judgment on the ground of inadequacy.

ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

This proceeding involves several parcels of real property located in the Village of Port Chester, which the Village acquired by eminent domain for the purpose of a redevelopment project. The claimants filed a claim for just compensation, seeking both direct and consequential damages. After a nonjury trial, the Supreme Court awarded the claimants the sums of $2,850,000 in direct damages and $212,000 in consequential damages. The Village appeals and the claimants cross-appeal from stated portions of the Supreme Court's judgment. We affirm the judgment insofar as appealed and cross-appealed from.

“ ‘In determining an award to an owner of condemned property, the findings must either be within the range of expert testimony, or be supported by other evidence and adequately explained by the court’ ” ( Chester Indus. Park Assoc., LLP v. State of New York, 65 A.D.3d 513, 515, 884 N.Y.S.2d 243, quoting Matter of City of New York [ Reiss ], 55 N.Y.2d 885, 886, 449 N.Y.S.2d 18, 433 N.E.2d 1266). Here, the Supreme Court's valuation of the condemned properties, and its calculation of consequential damages, were within the range of the expert testimony proffered by the parties' appraisers and adequately explained by the court. Thus, we decline to disturb the Supreme Court's award ( see Matter of Town of E. Hampton [ Windmill II Affordable Hous. Project ( 9 Parcels ) ], 44 A.D.3d 963, 964, 844 N.Y.S.2d 113; Matter of Village of Port Chester, 43 A.D.3d 943, 944, 843 N.Y.S.2d 337; 627 Smith St. Corp. v. Bureau of Waste Disposal of Dept. of Sanitation of City of N.Y., 289 A.D.2d 472, 474, 735 N.Y.S.2d 555; Matter of Town of Islip v. Mustamed Assoc., 222 A.D.2d 682, 636 N.Y.S.2d 84; Matter of Town of Islip v. Sikora, 220 A.D.2d 434, 435–436, 632 N.Y.S.2d 160).

The Supreme Court properly valued the condemned properties as a single economic unit. “To establish the propriety of valuing two separate parcels of property as a single economic unit for the purpose of awarding condemnation damages, ‘the property owner must show that the subject parcels are contiguous, and that there is a unity of use and of ownership’ ” ( 90 Front St. Assoc., LLC v. State of New York, 79 A.D.3d 708, 709, 912 N.Y.S.2d 294, quoting Johnson v. State of New York, 10 A.D.3d 596, 597, 781 N.Y.S.2d 764; see Matter of Town of Brookhaven v. Gold, 89 A.D.2d 963, 965, 454 N.Y.S.2d 111; Erly Realty Dev. v. State of New York, 43 A.D.2d 301, 303–304, 351 N.Y.S.2d 457; Guptill Holding Corp. v. State of New York, 20 A.D.2d 832, 247 N.Y.S.2d 800). In this case, the condemned properties were contiguous, and while a variety of individuals and entities held title to them, there was evidence in the record that they agreed to “share equally in the expenses, gains, and losses with respect to the subject parcels” ( Johnson v. State of New York, 10 A.D.3d at 598, 781 N.Y.S.2d 764). This Court has held that “such joint control over the ... parcels [is] enough to establish the parties' unity of ownership for valuation purposes” ( id. at 598, 781 N.Y.S.2d 764; see Di Bacco v. State of New York, 46 A.D.2d 461, 463, 363 N.Y.S.2d 121; Erly Realty Dev. v. State of New York, 43 A.D.2d at 305, 351 N.Y.S.2d 457; Guptill Holding Corp. v. State of New York, 23 A.D.2d 434, 437, 261 N.Y.S.2d 435; see also Matter of Metropolitan Transp. Auth., 86 A.D.3d 314, 320, 927 N.Y.S.2d 67). Although the Village focuses on the lack of a written agreement between the claimants, “[i]t is established, by abundant authority in this State, that a partnership may exist in reference to the purchase, sale and ownership of lands, and that it may be created by a parol agreement” ( Mattikow v. Sudarsky, 248 N.Y. 404, 406, 162 N.E. 296 [internal quotation marks omitted]; see Unicorn Enters. v. Stonewall Contr. Corp., 232 A.D.2d 404, 405, 648 N.Y.S.2d 153; Blank v. Nadler, 143 A.D.2d 966, 966–967, 533 N.Y.S.2d 891).

The claimants also established unity of use. The record contains testimony as to the claimants' intention and efforts to acquire the properties as an assemblage for the development of a large retail establishment before they had knowledge of a possible condemnation. The record also contains an executed lease (hereinafter the subject lease) between the claimants and Port Chester CVS, LLC (hereinafter...