Woehrel v. State

• Decision Date: 05 December 2019
• Docket Number: 527358
• Citation: Woehrel v. State, 178 A.D.3d 1169, 111 N.Y.S.3d 756 (N.Y. App. Div. 2019)
• Parties: Andrew C. WOEHREL, Respondent, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 1169

111 N.Y.S.3d 756

Andrew C. WOEHREL, Respondent,

v.STATE of New York, Appellant.

527358

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

Calendar Date: October 9, 2019

Decided and Entered: December 5, 2019

Letitia James, Attorney General, Albany (Owen Demuth of counsel), for appellant.

Alfred Paniccia Jr., Binghamton, for respondent.

Before: Garry, P.J., Mulvey, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

Devine, J. Appeals (1) from an order of the Court of Claims (Schaewe, J.), entered October 19, 2015, which, among other things, denied defendant's motion for partial summary judgment, (2) from two decisions of said court, entered June 20, 2016 and August 18, 2017, in favor of claimant, and (3) from the judgment entered thereon.

Claimant is the owner of three contiguous parcels that abut or lie near State Route 17 in the Town of Ashland, Chemung County and that, for some or all of his ownership, contained a motel and campground (hereinafter the motel property), a house with outbuildings (hereinafter the house property) and a log home. In 1999, defendant appropriated the frontage along State Route 17 in that area and closed off direct access to the road. Claimant, the then-owners of the house property and other nearby landowners received compensation for that taking. Claimant accessed his parcels via a private roadway, located along a utility right-of-way, that crossed an adjoining parcel (hereinafter the Coldiron property).

In 2009, defendant appropriated, among other things, portions of the motel property and the house property with structures on them. Claimant initiated this action to recover damages resulting from the appropriation. Defendant moved for partial summary judgment, asserting that claimant had no legal right to cross the Coldiron property and that the inaccessibility of his parcels would reduce the amount of his damages. In an order entered in October 2015, the Court of Claims discerned questions of fact as to whether claimant had an easement by prescription and denied the motion. Following a bench trial on the access issue, the Court of Claims issued a June 2016 decision finding that claimant had a prescriptive easement over the Coldiron property and that defendant was equitably estopped from arguing to the contrary. The Court of Claims then conducted a bench trial on the issue of damages and, in August 2017, issued a decision awarding claimant $319,400. A judgment was thereafter entered and defendant appeals.¹

It is debatable whether there are "exceptional circumstances" present in this case that would warrant equitably estopping defendant from contesting claimant's right to cross the Coldiron property ( Incorporated Vil. of Babylon v. Anthony's Water Cafe , 137 A.D.2d 792, 794, 525 N.Y.S.2d 337 [1988], appeal dismissed 72 N.Y.2d 951, 533 N.Y.S.2d 58, 529 N.E.2d 426 [1988], lv denied 73 N.Y.2d 703, 537 N.Y.S.2d 491, 534 N.E.2d 329 [1988] ; see Matter of E.F.S. Ventures Corp. v. Foster , 71 N.Y.2d 359, 369–370 [1988] ; Matter of Danial v. Town of Delhi , 185 A.D.2d 500, 503, 586 N.Y.S.2d 359 [1992], lv denied 81 N.Y.2d 706, 597 N.Y.S.2d 936, 613 N.E.2d 968 [1993] ). The question is academic, however, as our independent review of the trial evidence, with appropriate deference given to the credibility assessments and factual determinations of the Court of Claims, satisfies us that claimant does have a prescriptive easement over the Coldiron property (see JPMorgan Chase Bank N.A. v. Futterman , 173 A.D.3d 1496, 1497, 105 N.Y.S.3d 579 [2019] ; Auswin Realty Corp. v. Klondike Ventures, Inc. , 163 A.D.3d 1107, 1109, 81 N.Y.S.3d 278 [2018] ). "To establish the existence of a prescriptive easement, [claimant] was required to show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years" ( Rensselaer Polytechnic Inst. v. Schubert , 170 A.D.3d 1307, 1310, 95 N.Y.S.3d 452 [2019] [internal quotation marks and citations omitted]; see Koziatek v. SJB Dev. Inc. , 172 A.D.3d 1486, 1487, 99 N.Y.S.3d 480 [2019] ). Claimant was not required to further show that his use of the private roadway was exclusive but, to the extent that the area was open to the public and used as a parking lot during the prescriptive period, he was obliged to distinguish his use of the private roadway from that of the general public (see Nixon v. Morris , 91 A.D.3d 1170, 1172, 936 N.Y.S.2d 773 [2012] ).

The trial evidence includes a 1998 photograph that arguably shows the private roadway, as well as a 1997 document in which the then-owners of the house property granted claimant the right to use what they described as an easement over the Coldiron property. Claimant further testified that he, his guests and his customers used the private roadway on a continuous basis from the 1980s onward. The use was open and notorious, with claimant documenting how he made improvements to the private roadway and installed signage identifying it as the entrance to the motel property (see Rensselaer Polytechnic Inst. v. Schubert , 170 A.D.3d at 1310, 95 N.Y.S.3d 452 ). Hostility and the distinct nature of claimant's use was reflected by those improvements, claimant's testimony that he had no permission from the owner of the Coldiron property to use the road and affidavits from officers of the Coldiron property's corporate owner who agreed and stated that his use would have been stopped had they known of it (see Rosenzweig v. Howlan , 166 A.D.3d 1146, 1148–1149, 87 N.Y.S.3d 658 [2018] ; Gorman v. Hess , 301 A.D.2d 683, 684–685, 754 N.Y.S.2d 393 [2003] ).² Defendant suggested that the private roadway did not exist before 1999 and that claimant's testimony undermined his claims of adverse and hostile use. According deference to the credibility determinations and factual findings of the Court of Claims, however, its finding that claimant proved by clear and convincing evidence that he has a prescriptive easement over the private roadway on the Coldiron property was justified (see Auswin Realty Corp. v. Klondike Ventures, Inc. , 163 A.D.3d at 1109–1110, 81 N.Y.S.3d 278 ; Rosenzweig v. Howlan , 166 A.D.3d at 1148–1149, 87 N.Y.S.3d 658 ; Led Duke v. Sommer , 205 A.D.2d 1009, 1010–1011, 613 N.Y.S.2d 985 [1994] ).

Next, inasmuch as this case involves " a partial taking of real property, [claimant] is not only entitled to the value of the land taken — i.e., direct damages — but also to consequential damages, which consist of the diminution in value of [claimant's] remaining land as a result of the taking or the use of the property taken" ( Matter of State of New York [KKS Props., LLC] , 119 A.D.3d 1033, 1034, 990 N.Y.S.2d 105 [2014] ; see Matter of Eagle Cr. Land Resources, LLC [Woodstone Lake Dev., LLC] , 149 A.D.3d 1324, 1326, 52 N.Y.S.3d 160 [2017], lv denied 29 N.Y.3d 916, 2017 WL 3908596 [2017] ; Coldiron Fuel Ctr., Ltd. v. State of New York , 8 A.D.3d 779, 780, 778 N.Y.S.2d 208 [2004] ). In determining the amount of damages, "the findings must either be within the range of the expert testimony, or be supported by other evidence and adequately explained by the court" ( Matter of State of New York [KKS Props., LLC] , 119 A.D.3d at 1037, 990 N.Y.S.2d 105 [internal quotation marks, brackets and citation omitted]; see Matter of City of New York [Reiss] , 55 N.Y.2d 885, 886, 449 N.Y.S.2d 18, 433 N.E.2d 1266 [1982] ). Defendant asserts that they were not, but we do not agree.

The Court of Claims rejected the conclusions of claimant's appraiser with regard to his valuation of the house property and the motel property under the income capitalization approach (see Pedersen v. State of New York , 50 A.D.2d 1004, 1004, 376 N.Y.S.2d 246 [1975], lv denied 39 N.Y.2d 707, 385 N.Y.S.2d 1027, 351 N.E.2d 439 [1976] ), as well as his...