Weber v. State, 38320
| Decision Date | 14 February 1966 |
| Docket Number | No. 42230,No. 38320,38320,42230 |
| Citation | 267 N.Y.S.2d 152,25 A.D.2d 584 |
| Parties | Frank B. WEBER et al., Respondents, v. STATE of New York, Appellant. (Claim) Frank B. WEBER et al., Respondents-Appellants, v. STATE of New York, Appellant-Respondent. (Claim) |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Joseph F. Gibbons, Albany, for appellant.
Lester H. Chase, Glen Cove, Bernard L. Bermant of Skinner & Bermant, Leddy & Raber, New York City, of counsel, for respondents-claimants.
Before GIBSON, P. J., and HERLIHY, TAYLOR, AULISI and HAMM, JJ.
Appeals by the State from judgments of the Court of Claims awarding damages for appropriations of real property in the town of Oyster Bay for highway purposes; and cross appeal by claimants from one of said judgments.
We find without merit the State's contention that proof of sales of comparable properties was conclusive as against expert testimony of higher values; as sales that are 'comparable' are just that and proof thereof by no means assumes identical location or identical value.
Contrary to the State's assertion, we find in the record no indication that the trial judge was influenced by the evidence of values received in other cases or that the evaluations at which he arrived in this case were the result of subjective judgment.
The unit values underlying the decision (with one exception, which is immaterial since it favored appellant) are within the range of the testimony and have adequate support in the record and hence would be sustainable; but in the application of those values there appear to have arisen errors in computation to which attention is called. The trial court's evaluation of the business use area amounted to $1.20 per square foot or $228,000, of which $110,000 represented the fee taking of 91,673 square feet. The consequential damage to the business property unappropriated was found to be 30%, which would amount to $0.36 per square foot, and this rate applied to the remaining business area of approximately 98,100 square feet would fix the consequential damage at $35,300, and this amount, plus the awards of $110,000 for land taken and $2,000 for building taken, would produce damage of $147,300; but the damage actually awarded was $163,750.
Thus, on the bases of the land areas involved and the unit values found, the damages should have been computed as follows:
-----------------------------------------------------------
Before values: Land, business $228,000
Land, residential 43,000
Building 2,000
-------------- $273,000
After values: Land, business 82,700
Land, residential 43,000
Building 0
Damage 147,300 *
-------------- 273,000
--------
* Including consequential damage of $35,300.
It follows that the award was excessive by $16,450.
More than two years after the fee appropriations which are the subjects of Claim No. 38320, above discussed, the State formally appropriated the permanent easement for which this claim for damages was interposed. The prior fee takings included a strip of land extending in a generally northeasterly direction from the northerly line of Jericho Turnpike to claimants' easterly property line, thus bisecting the portion of claimant's property zoned for business use; the triangular parcel southeasterly of the strip being appropriated at the same time and the triangular portion northwesterly of the strip remaining to claimants. The strip was appropriated for purposes of, and there was constructed upon it, a service road connecting with the Wantagh-Oyster Bay expressway, this fee taking being with the express right of access to claimants' lands, which, in fact, abutted the service road, when later constructed, for a distance of 560 feet. The service road was so constructed as to provide ready access to claimants' lands, at the southwesterly corner thereof, by a driveway approximately 20 feet wide. The permanent easement subsequently taken was upon a strip of land extending northerly from that access point along the remaining length of the service road, thus separating the service road from claimants' lands to the northwest. The easement was 'for the purpose of constructing, reconstructing and maintaining thereon excavation, embankment and slopes', and, indeed, by de facto appropriation, embankments and slopes were constructed prior to the actual appropriation of the easement. The embankment is in some places 10 feet in width and at claimants' request was found by the trial court to be, at some locations, 'as much as 4 feet above the grade of claimants' remaining unappropriated land.' The appropriation did not specifically provide for access to claimants' lands, as did the prior taking, but there was reserved 'to the owner of the property, the right and privilege of using this property providing the exercise of such right and privilege does not, in the opinion of the Superintendent of Public Works, or other authorized representative acting for The People of the State of New York or its assigns, interfere with or prevent the user and exercise of the rights hereinbefore described.' The trial court denied consequential damages, finding the actual construction completed within the limits of the permanent easement to be 'an indication that the State limits itself to the actually constructed permanent easement and that it does not indicate any intention of interfering with or altering the physical construction made pursuant to the maps herein'; and then held, expressly upon the authority of Jafco Realty Corp. v. State of New York, 18 A.D.2d 74, 238 N.Y.S.2d 66, affd. 14 N.Y.2d 556, 248 N.Y.S.2d 651, 198 N.E.2d 39, that 'if the State should in the future * * * cut off claimants...
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