20 Rewe St., Ltd. v. State

208 A.D.3d 1140

174 N.Y.S.3d 117

20 REWE STREET, LTD., appellant,

v.STATE of New York, respondent.

2019–10193, 2019–10194

Claim No. 121234

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

Argued—June 13, 2022

September 14, 2022

Goldstein, Rikon, Rikon, Houghton, P.C., New York, NY (Jonathan Houghton and Ashley Levi of counsel), for appellant.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Blair J. Greenwald of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, WILLIAM G. FORD, LILLIAN WAN, JJ.

DECISION & ORDER

In a claim to recover damages arising from a partial taking of real property, the claimant appeals from (1) a decision of the Court of Claims (Michael E. Hudson, J.), dated April 4, 2019, and (2) a judgment of the same court dated July 17, 2019. The judgment, insofar as appealed from, upon the decision, made after a trial, is in favor of the claimant and against the defendant in the principal sum of only $3,310,500.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendant.

This appeal involves the determination of just compensation for the partial taking of property in Greenpoint, Brooklyn, owned by the claimant, 20 Rewe Street, Ltd. Prior to the taking, the parcel was a 39,900 square foot double-cornered property with a maximum floor area ratio (hereinafter FAR) of 2.0, located in a M3–1 (Manufacturing/Industrial) zone. The property was unimproved, except for a concrete wall and a chain-link fence, and was used for storage and the parking of construction equipment and vehicles. On January 13, 2012, the New York State Department of Transportation appropriated 27,041 square feet of the northern side of the property as part of the Kosciuszko Bridge Project, leaving a remainder property of approximately 206 feet by 60 feet (12,859 square feet). The claimant commenced this claim seeking damages from the State as just compensation for the taking.

Following a trial, the Court of Claims awarded the claimant the principal sum of $3,310,500. The court found the valuation approach of the State's appraiser to be more persuasive than that of the claimant's appraiser. The court, therefore, based the award on the pre-taking value of the property proffered by the State's appraiser, with one upward modification to account for a mistake in that appraiser's access adjustment. The court rejected the time, zoning, and size adjustments made by the claimant's appraiser, finding that those adjustments were not supported by the evidence, while the adjustments made by the State's appraiser were largely appropriate. The court also rejected the claimant's challenges to the State's comparable sale properties.

Based on the State's appraisal, with the 10% access adjustment, the Court of Claims found that the pre-taking value of the property was $4,389,000, representing 79,800 square feet of FAR at $55 per square foot. Thus, the taking of 54,082 square feet of FAR resulted in a direct land loss of $2,974,510. The court accepted the State's higher figure of $53,092 for the value of the loss of improvements. To determine the value of the remainder property after the taking, the court noted that the claimant's appraiser had proffered a 17% reduction in value (per square foot of FAR), while the State's appraiser had proffered a 20% reduction in value. The court accepted the State's higher percentage diminution as an admission against interest by the State. The court thus concluded that the value of the remainder parcel was $44 per square foot of FAR, resulting in severance damages of $282,898. Judgment was thereafter entered in favor of the claimant and against the State in the principal sum of $3,310,500. The claimant appeals.

The Takings Clause of the Fifth Amendment, applicable to the states through the 14th Amendment, provides that private property shall not "be taken for public use, without just compensation" ( U.S. Const, 5th Amend). " ‘When the State takes property by eminent domain, the Constitution requires that it compensate the owner so that he [or she] may be put in the same relative position, insofar as this is possible, as if the taking had not occurred’ " ( Lebov, LLC v. State of New York, 185 A.D.3d 911, 912, 128 N.Y.S.3d 624, quoting Matter of City of New York [Kaiser Woodcraft Corp.], 11 N.Y.3d 353, 359, 870 N.Y.S.2d 827, 899 N.E.2d 933 [internal quotation marks omitted]). " ‘The measure of damages in a condemnation case must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time’ " ( Elpa Bldrs., Inc. v. State of New York, 196 A.D.3d 541, 543, 152 N.Y.S.3d 117, quoting Matter of 730 Equity Corp. v. New York State Urban Dev. Corp., 142 A.D.3d 1087, 1088, 37 N.Y.S.3d 599 [internal quotation marks omitted]).

"Where, as here, there is a partial taking of real property, the measure of damages is the difference between the value of the whole before the taking and the value of the remainder after the taking" ( Elpa Bldrs., Inc. v. State of New York, 196 A.D.3d at 543, 152 N.Y.S.3d 117 [internal quotation marks omitted]; see Lebov, LLC v. State of New York, 185 A.D.3d at 912, 128 N.Y.S.3d 624 ; Matter of County of Orange v. Monroe Bakertown Rd. Realty, Inc., 130 A.D.3d 823, 825, 14 N.Y.S.3d 78 ).

"[J]ust compensation includes not only the direct damages for the portion that was taken, but also any consequential or indirect damages caused by the taking that impaired the remaining portion of the property" ( Lerner Pavlick Realty v. State of New York, 98 A.D.3d 567, 568, 949 N.Y.S.2d 480 ). "Consequential damages are measured by the difference between the before and after values, less the value of the land and improvements appropriated" ( id. at 568, 949 N.Y.S.2d 480 ; see Mil–Pine Plaza, Inc. v. State of New York, 72 A.D.2d 460, 462, 424 N.Y.S.2d 937 ). " ‘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’ " ( Elpa Bldrs., Inc. v. State of New York, 196 A.D.3d at 543, 152 N.Y.S.3d 117, quoting Matter of Village of Haverstraw [Ray Riv. Co., Inc.], 191 A.D.3d 994, 996, 141 N.Y.S.3d 131 [internal quotation marks 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 ).

" ‘In condemnation cases, the authority of this Court to review findings of fact after a nonjury trial is as broad as that of the trial court’ " ( Matter of Village of Haverstraw [Ray Riv. Co., Inc.], 191 A.D.3d at 995, 141 N.Y.S.3d 131, quoting Matter of Mazur Bros., Inc. v. State of New York, 97 A.D.3d 826, 828, 949 N.Y.S.2d 160 ). "This court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses" ( Matter of Village of Haverstraw [Ray Riv. Co., Inc.], 191 A.D.3d at 995, 141 N.Y.S.3d 131 [internal quotation marks omitted]; see Matter of Mazur Bros., Inc. v. State of New York, 97 A.D.3d at 828, 949 N.Y.S.2d...