New York State Court of Claims

New York State Court of Claims
NAZZARO v. THE STATE OF NEW YORK, # 2018-045-503, Claim No. 124118

Synopsis

Case information

UID: 2018-045-503
Claimant(s): J. NAZZARO PARTNERSHIP, L.P.
Claimant short name: NAZZARO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124118
Motion number(s):
Cross-motion number(s):
Judge: Gina M. Lopez-Summa
Claimant's attorney: Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.
By: Saul R. Fenchel, Esq.
Defendant's attorney: Hon. Barbara D. Underwood, Acting Attorney General
By: Christopher M. Gatto, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 29, 2018
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This is a timely filed claim for a permanent appropriation (taking) of property, as well as a temporary easement on the property and consequential damages, owned by claimant, J. Nazzaro Partnership, L.P., brought against defendant, the State of New York, pursuant to the Eminent Domain Procedure Law and 30 of the Highway Law.

The Claim in this matter was filed with the Court on March 26, 2014. The appropriation maps and descriptions contained therein are adopted by the Court and incorporated herein by reference. The aforesaid maps and descriptions were filed in the Office of the County Clerk of Suffolk County. Pursuant to the requirements of Court of Claims Act 12 (4) and EDPL 510 (A), the Court has made the required viewing of the property which is the subject of this claim. The claim has not been assigned or submitted to any other Court or tribunal for audit or determination. Pursuant to CPLR R 3025 (c), the Court deems that the pleadings are conformed to the proof presented at trial.

Prior to the trial of this matter the parties stipulated that:

1. Claimant, J. Nazzaro Partnership, L.P. is the owner of the property.

2. The property is identified on the 2012 Suffolk County Tax Map as District 800, Section 134, Block 2, Lots 1 and 2.

3. The vesting date is February 21, 2014.

4. Before the taking, the property was 49,034 square feet.

5. The State's partial appropriation was made as follows:

Fee Taking - Map 1253, Parcel 1297 (2,504 sq ft) and Parcel 1298 (1,248 sq ft)

Temporary Easement - Map 1254, Parcel 1299 (2,622 sq ft) and Parcel 1300 (1,153 sq ft)

6. After the appropriation, the remainder property was 45,282 square feet.

7. As of the vesting date, the property was improved with a 4,120 square foot Chase Bank building.

8. Claimant timely filed a Claim in this matter on March 26, 2014.

The subject property is an irregularly shaped parcel located at 705 Nesconset Highway in the Town of Smithtown, County of Suffolk. Nesconset Highway is alternatively referred to as Smithtown Bypass as well as Route 347. The parcel is located on the southwesterly corner of Nesconset Highway and Terry Road and on the northwest corner of Terry Road and Catherine Avenue. There is approximately 291 feet of frontage along Nesconset Highway, approximately 195 feet of frontage along Terry Road, approximately 408 feet of frontage on Catherine Avenue and approximately 93 feet of frontage on William Street.

The subject property consists of 2 tax lots and each lot is split zoned Neighborhood Business District (NB) and Residential 10 District (R-10). The property has been a unified economic parcel prior to the adoption of the zoning ordinance in 1969. Tax lot 1 has the majority of its property in the R-10 zone and tax lot 2 has the majority of its property in the NB zone. There are two different zoning lines, one from 1952 and another line noted on the survey as being from a Smithtown Zoning official. Regardless of which line is used, the lots remain split zoned. The property had never previously been divided or split among the different zoning boundary lines. Additionally, the property had never been utilized for residential purposes.

Prior to the appropriation, the subject property contained 49,034 square feet and was improved with a one-story-high Chase Manhattan Bank that completed construction in April 2013. The bank was built in conformity to an approved site plan. The approved site plan included a special exception to permit parking 50 feet into the residential district as well as variances which reduced the front yard setback from 50 to 18 feet on Catherine Avenue, reduced the front yard setback on Terry Road from 50 to 45 feet, reduced the parking setback in the residential district from 10 feet to zero and reduced the required truck loading spaces from 1 to zero. The approved site plan also required the applicant to construct a 3 to 6 foot high berm along the residential district boundary line, plant 5 foot high evergreens and to angle the curb cut onto Catherine Avenue to discourage right turns exiting the premises in order to mitigate the impact on Catherine Avenue.

The property also has deed restrictions for a 50-year-period commencing in 2010. These restrictions prevent the property from being used for residential or agricultural uses or any uses which are intended to house, educate or provide care for children the elderly or the infirm. In addition, no basements or water wells are to be constructed. These restrictions were put in place by the previous owner, Exxon Mobil, due to the possibility that petroleum spilled, leaked or was otherwise discharged onto or into the subject property after Exxon Mobil undertook the necessary environmental remediation of the property. Additionally, the deed restrictions were a factor in the pricing of the property.

As a result of the taking, the property was reduced in size by 1,248 square feet along Terry Road and 2,504 square feet along Route 347 for a total of 3,752 square feet which is 7.65% of the total land area. The property taken included a landscaped buffer zone which contained grass, shrubbery and trees along Route 347. The claimant contends that the loss of property impacted the development potential of the property. Defendant contends that the taking had no impact on the property.

The appropriate measure of damages for a partial taking of real property is the difference between the value of the whole property before the taking and the value of the remainder after the taking (Chester Indus. Park Assoc., L.P. v State of New York, 103 AD3d 827 [2d Dept 2013]). The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, whether or not the property is being put to such use at that time (Gyrodyne Co. of Am., Inc. v State of New York, 89 AD3d 988 [2d Dept 2011]). It is not essential to demonstrate that either the property had been used as its projected highest and best use or that there had been a plan for such use, however it is necessary to demonstrate that there is a reasonable probability that its asserted use could or would have been made within the reasonably near future and a use which is no more than a speculative or hypothetical arrangement in the mind of a party may not be accepted as the basis for an award (Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, 536 (1974), Matter of 730 Equity Corp. v New York State Urban Dev. Corp.,142 AD3d 1087 [2d Dept 2016]).

Claimant moved for an adverse inference against defendant's appraiser for his failure to comply with a so-ordered subpoena to produce his entire work file at trial. Claimant contends that defendant's appraiser, Mr. Marchitelli, failed to keep copies of draft appraisals in violation of the Uniform Standards of Professional Appraisal Practice ("USPAP"). Defendant argues that there is no requirement to retain draft appraisals and that Mr. Marchitelli's entire work file was produced.

The 2014-2015 and 2016-2017 editions of USPAP set forth that an appraiser must maintain a work file for each appraisal. The work file must include, among other items, "true copies of any written reports, documented on any type of media." A true copy is defined by USPAP as a replica of the report transmitted to the client. A photocopy or an electronic copy of the entire report transmitted to the client satisfies the requirement of a true copy. This does not include drafts (Matter of City of New York [Oakwood Beach Bluebelt Stage 1], 47 Misc 3d 1229 (A) [Sup Ct, Richmond County 2015]).

An adverse inference is permitted where a document exists, which is in the control of the opposing party and is not produced by that party, without a reasonable explanation for non-production (Wilkie v New York City Health & Hosps. Corp., 274 AD2d 474 [2d Dept 2000]).

An adverse inference can also be taken where a party destroys such a document without reasonable explanation.

The evidence established that Mr. Marchitelli prepared a draft, submitted it to the Attorney General and then instead of keeping a copy of that report, overwrote that copy with changes. However, he testified that the only change he made to the report was to delete the term "draft." Although not produced as part of Mr. Marchitelli's work file, counsel for defendant was able to produce a copy of the draft report on the last day of trial.

The Court credits Mr. Marchitelli's testimony that the earlier draft of his report merely differed from the final report by his deletion of the word "draft" from the report. Additionally, a copy of the draft report was eventually produced at trial. Thus, under these facts and circumstances, the Court shall not apply an adverse inference.

In this case, the parties differ as to the highest and best use of the property. Claimant contends that the highest and best use of the property is as a unified parcel for commercial purposes. Defendant contends that the highest and best use of the property is to divide the parcel into two economic units. One portion would be used as a retail building as currently improved and the second portion would be used for residential development after 2060.

Claimant's appraiser, Elinor Brunswick, adopting claimant's engineer's findings, contends that the highest and best use of the property prior to the taking would be to develop an 8,400 square foot two-story building. This would include the existing bank comprising 4,120 square feet and an additional second floor office space comprising 4,280 square feet. In order to develop this building, a variance would be required. Claimant contends that there is a reasonable probability that the Town of Smithtown would issue a use variance. The variance would allow parking within the R-10 zoning district which would be necessary for the development of the multilevel building. Ms. Brunswick appraised the property prior to the taking at a value of $5,600,000(1) .

Ms. Brunswick opined that after the taking, the highest and best use of the property was for a 7,350 square foot commercial two-story building. In the after scenario, the second floor would contain 3,230 square feet which is a loss of 12.5% of total potential office space. Ms. Brunswick appraised the property after the taking at a value of $4,500,000.

Defendant's appraiser, Richard Marchitelli, contends that the highest and best use of the property is to divide the property into two separate economic units. He acknowledges that it is a unified parcel but for valuation purposes he divided the property into Unit A which contains the existing bank and parking area and Unit B which is the portion of the property available for residential development in 2060. Mr. Marchitelli consulted with Daniel Falasco, defendant's engineer, and took into consideration the fact that Mr. Falasco reported that the Town of Smithtown considered the property to have exhausted its developmental potential. Mr. Falasco then calculated that Unit A was 35,113 square feet and Unit B was 13,921 square feet. Mr. Marchitelli contends that the highest and best use prior to the taking is for retail development of Unit A and residential development in 2060 of Unit B. Mr. Marchitelli appraised Unit A at $1,900,000 and Unit B at $31,000.

Mr. Marchitelli opined that after the taking, the highest and best use of the property was unchanged. After the taking, Unit A remained valued at $1,900,000 and Unit B was valued at $27,000. Mr. Marchitelli thereby found that the highest and best use of Unit B would be to leave the land vacant until the deed restrictions were lifted.

The Appraisal Institute defines highest and best use as the reasonably probable and legal use of vacant land or an improved property, that is physically possible, appropriately supported, financially feasible, and that results in the highest value. There are four criteria that must be met, legal permissibility, physical possibility, financially feasible and maximum profitability.

Claimant contends that a multi-level building development is maximally productive, there is high market demand for such uses and the property size would support the structure. Claimant also contends that such development is legally permissible because the Town of Smithtown is likely to issue a use variance which would allow additional parking on the residential zone as they have already allowed it through a special exception. Lastly, claimant contends that it is financially feasible as part of the potential had already been realized as a 4,120 square foot bank building. Ms. Brunswick concludes that given the dense commercial development along Route 347, comparable multilevel sites in the area, the high traffic count on the busy intersection, the potential investment income derived from a commercial development and the likelihood of a zoning variance to permit parking on the residential portion, an 8,400 square foot multilevel commercial development is the highest and best use of the property before the taking.

Mr. Marchitelli determined that for valuation purposes the subject property should consist of two economic units due to the deed restrictions. Mr. Marchitelli contends that the property is large enough to accommodate a number of uses and supported parking. He states that retail use of Unit A will maximize the property's value. He also concluded that the maximally productive use of Unit B is more problematic since it cannot be developed until 2060. He contended that a change of zone to commercial use of Unit B is not reasonably probable.

Before determining the highest and best use, it is necessary to determine whether or not a use variance would be granted. Uses the court may consider in determining value are limited to those permitted by the zoning regulations at the time of taking, however, where there is a reasonable probability of rezoning, adjustments may be made to reflect that fact (Matter of Town of Islip [Mascioli], 49 NY2d 354 [1980]; Matter of Town of Oyster Bay [55 Motor Ave. Co., LLC], 156 AD3d 704 [2d Dept 2017]).

William Lahti, claimant's engineer, testified that there was a reasonable probability that a variance would be granted. The Town of Smithtown Building Zone Ordinance Chapter 322 Section 322-6 F, adopted on December 18,1969, provides, "[w]hen a district boundary line divides a lot in a single ownership at the effective date of this chapter or any subsequent amendment thereto, the Board of Appeals may permit extension of the less restrictive use as hereinafter provided in 322-83A(1)." The subject property consists of tax lots 1 and 2 and has been in single ownership since 1955. Thus, Mr. Lahti opines that tax lot 1 may receive a variance to allow parking in a residential district if it meets the criteria for issuance of a use variance.

Town of Smithtown Building Zone Ordinance 322-83A provides that no use variance shall be granted by the Board of Zoning Appeals without a showing that the applicable zoning regulations and restrictions have caused unnecessary hardship. In order to establish unnecessary hardship, the applicant must demonstrate that for each and every permitted use under the zoning regulations; the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; that the alleged hardship relating to the property is unique and does not apply to a substantial portion of the district or neighborhood; that the requested use variance if granted will not alter the essential character of the neighborhood; and that the alleged hardship has not been self created.

Mr. Lahti contends that a use variance would be granted because the Town of Smithtown Zoning Board has already granted a special exception to permit parking 50 feet in the R-10 zone. By permitting the special exception, the Town would have had to determine that the residential portion of the lot is unusable for residential purposes by reason of size, shape or lack of potential access. In further support, Mr. Lahti states that the lot is already partially zoned NB and is bounded by right of ways on all but the east property line and by Route 347 on its northern property line. The lot does not directly abut any residentially used parcels of land. Additionally, the lot is only acre in size and after front yard setbacks are applied to the three street frontages, the size of any potential development on the parcel is severely limited. From a site development perspective, none of the as-of-right development uses(2) are appropriate due to the size of the lot being too small for any of the permissible uses as well as deed restrictions preventing the property from being developed as any of the permitted uses until 2060.

Mr. Lahti also set forth that granting the use variance would not alter the neighborhood as the property is isolated by rights of way and approval was already granted for parking on a portion of the property. With respect to the hardship not being self-created, Mr. Lahti explained that the deed restrictions were placed on the property by the previous owner and the history of the property is such that it has been always used for commercial purposes. The property has never been developed as a residence.

Mr. Lahti also contends that the proposed site development plan includes earthen berm mitigation measures previously required by the Town. These measures more adequately afford protection to the residential homes located near the property. Mr. Lahti opined that he was confident that a use variance would be granted.

Daniel Falasco, defendant's engineer, contends that claimant failed to establish the reasonable probability of receiving a use variance. He states that claimant failed to offer proof that it cannot realize a reasonable return or that the property is unique. He points out that the only development west of the subject property is residential. Additionally, because the owner knew of the deed restrictions they cannot allege that hardship was not self-created. Mr. Falasco also contends that no proof of other properties where such a use variance was granted was provided by claimant. Moreover, a similar variance application made by claimant on a different property was denied. Claimant also owns split zoned property across from the subject property on Route 347 which is bordered by a recharge basin and land owned by Suffolk County. Claimant's application for a variance to increase parking in the residential district from 50-72 feet was denied. Mr. Falasco points out that because claimant would be seeking a variance from 50 feet to over 160 feet, an additional variance would be needed(3) . The variance would require a densely planted buffer zone along the edges of the parking that faces the residential portion of the property. The buffer zone must be equal to the depth of the parking extension or 15 feet whichever is greater. Mr. Falasco opines that because of the size of the necessary buffer, claimant would not be able to construct its multi-level potential development plan. Mr. Falasco also contends that the existing bank building cannot support a second story and to add another level to the existing bank building would require business interruption and a large construction budget.

In determining whether or not it's reasonably probable that a use variance would be granted for the purposes of valuing property, the Court is mindful that local zoning boards have wide discretion in considering an application (Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437 [2000]).

The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future and takes into consideration financing, costs of construction, taxes and possible profits (Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535 [1974]; Matter of Town of Oyster Bay [55 Motor Ave. Co., LLC], 156 AD3d 704 [2d Dept 2017]).

Claimant failed to substantiate its contention that the highest and best use of the property was as an 8,400 square foot multi-level building. There was insufficient evidence presented to establish the economic feasability of the proposed venture, for instance, it is unknown whether the existing building could sustain the weight of a second floor or the costs involved in retrofitting the existing building to accommodate a second floor. Additionally, even if claimant established economic feasibility, claimant failed to present sufficient evidence to demonstrate that there is a reasonable probability that an 8,400 square foot multi-level building could or would have been approved by the Town. A similar variance application to increase parking onto a residentially zoned portion of property, located across the street from the subject property on Route 347, was denied. This application requested less of an encroachment onto the residentially zoned portion of the property than the one presented by claimant's experts. In addition, claimant was unable to establish that a use variance would be granted. Claimant was unable to establish that the hardship was not self-created. When a buyer purchases property that is already subject to zoning requirements, and then applies for a use variance to circumvent the restrictions, any hardship from the zoning is considered to be self-created (see Matter of Miller Family Ltd. Partnership v Trotta, 23 AD3d 389 [2d Dept 2005]). In the instant case, claimant knew of the zoning and deed restrictions when the property was purchased. Additionally, the contamination and deed restrictions were factors considered in the purchase price of the property.

Thus, the Court finds that claimant has failed to credibly establish that the highest and best use of the property is as an 8,400 square foot multilevel building. As such, the Court is constrained to find that the highest and best use of the property is as it is currently being used and then later residential development as set forth by defendant's experts. Having rejected claimant's appraisal, the Court is bound to either accept or explain the basis for any departure from defendant's appraisal (Gyrodyne Co. of Am., Inc. v State of New York, 89 AD3d 988, 989 [2d Dept 2011]).

Mr. Marchitelli described the subject property as 1.126 acres or 49,034 square feet. In analyzing the value of the subject property prior to the taking, Mr. Marchitelli first utilized the vacant land valuation. The subject property was purchased in 2010 as a single parcel of vacant land for $1,000,000 and the deed restrictions were a factor in the pricing of the property. Although Mr. Marchitelli recognized that the subject property was a single parcel and was purchased in 2010 as a single parcel, he determined the land values of Units A and B individually before combining the values.

Mr. Marchitelli selected 4 different sales of vacant commercial property within Suffolk County in valuing economic unit A. After making certain adjustments to the sales which he deemed were appropriate, including upward adjustments to Sales 1, 2 and 4 to reflect rising property values, he found a before taking value of the land of $24 per square foot. He multiplied $24 by 35,113 square feet for a value of $843,000(R).

Mr. Marchitelli selected 3 different sales of vacant residential property in valuing economic unit B. After making certain adjustments to the sales which he deemed were appropriate, including upward adjustments to all sales to reflect rising property values, he found a before taking value of the land of $11 per square foot. He multiplied $11 by 13,921 square feet for a value of $153,000(R). However, because of the deed restriction, he discounted the estimated value by 80% and concluded that the before taking vacant land value was $31,000(R).

As a result, Mr. Marchitelli found a total before taking vacant land value of the subject property to be $874,000 by combining the values of Units A and B.

The Court is cognizant that, although property is to be valued free and clear of all liens and encumbrances, it must take into consideration the effect of a deed restriction as well as the possibility of its removal or termination (Schwartz v State of New York, 95 Misc 2d 525 [Ct Cl 1978] affd 72 AD2d 490 [3d Dept 1980]). Nevertheless, "[t]he purchase price set in the course of an arm's length transaction of recent vintage, if not explained away as abnormal in any fashion, is evidence of the 'highest rank' to determine the true value of the property at that time" (Plaza Hotel Assoc. v Wellington Assoc., 37 NY2d 273, 277 [1975][citation omitted]). There is no evidence before the Court to establish that the sale of the subject property for $1,000,000 approximately four years prior to the appropriation was an abnormal sale. An arms-length sale of a parcel of property is persuasive evidence of its value (Briarcliff Assoc. v Town of Cortlandt, 272 AD2d 488 [2d Dept 2000]). Mr Marchitelli's vacant land valuation is at odds with the $1,000,000 purchase price of the property. Additionally, Mr. Marchitelli sets forth in his appraisal report that Long Island's economic recovery is beginning to accelerate and that the economy was experiencing rising property values yet he finds a value lower than the purchase price for the subject property. Lastly, Mr. Marchitelli did not satisfactorily explain how he arrived at a discount figure of 80% when evaluating land Unit B. He did set forth that the 80% figure was based on his experience with contaminated properties and deed restrictions, however he was unable to find any similar sales of contaminated properties upon which to base an 80% discount rate. Mr. Marchitelli testified that at least a portion of the 80% figure was purely subjective. The Court finds that given the facts and circumstances of this case that an 80% reduction in value is an excessive unsupported adjustment (Matter of County of Nassau [Cohen], 39 NY2d 574 [1976]; Fusco v State Farm Fire & Cas. Co., 57 AD3d 939 [2d Dept 2008]). Accordingly, the Court does not accept the 80% discount applied by Mr. Marchitelli in valuing Unit B.

Without application of the 80% reduction, economic unit B is valued at $153,000. When added to $843,000, the value ascribed to economic unit A, the total before taking vacant land value of the subject property is $996,000. This value is more consistent with the arms-length purchase price for the property.

The Court cannot be guided by Ms. Brunswick's vacant land valuation as she incorrectly valued the land as vacant utilizing the income capitalization approach and arrived at a value of $5,600,000. Valuing vacant land based upon the income capitalization approach of income expected to be realized from extensive improvements not yet financed is not permissible (Matter of City of New York [Atl. Improvement Corp.], 28 NY2d 465 [1971]; Briarcliff Assoc. v Town of Cortlandt, 272 AD2d 488 [2d Dept 2000]).

Based upon the foregoing, the Court finds that the before taking vacant land value of the subject property to be $996,000.

Mr. Marchitelli set forth that there were two fee takings which resulted in the loss of 3,752 square feet or 7.7% of the site. The first fee taking was for 2,504 square feet along Route 347. The second fee taking was for 1,248 square feet along Terry Road. There were also 2 temporary easements which encumbered 3,775 square feet. The first temporary easement is located along Route 347 which covers 2,622 square feet. The second temporary easement is along Terry Road which covers 1,153 square feet.

Mr. Marchitelli explained that after the taking, Unit A was reduced by 2,228 square feet to 32,885 square feet and Unit B was reduced by 1,524 square feet to 12,397 square feet. Mr. Marchitelli opined that the appropriations only reduced the area of the site. The functionality and aesthetics of the property were not diminished as a result of the appropriation. He concluded that the appropriations had no impact on the property's highest and best use.

Mr. Marchitelli in analyzing the vacant land value of Unit A after the taking, made no changes to any of his adjustments finding that the decrease in size warranted no adjustment. He found an after taking land value of $24 a square foot which he multiplied by 32,885 square feet for a total of $789,000. Deducting the after vacant land value of $789,000 from the before vacant land value of $843,000, the Court finds a vacant land value loss of $54,000 attributable to Unit A.

Mr. Marchitelli in analyzing the vacant land value of Unit B after the taking, made no changes to any of his adjustments finding that the decrease in size warranted no adjustment. He found an after taking land value of $11 square foot which he multiplied by 12,397 square feet for a total of $136,000. He then discounted the value by 80% and concluded that the market value of the fee simple interest was $27,000. He found direct damages to economic unit B in the amount of $4,000 which he reached by subtracting the after land value of $27,000 from his before value of $31,000.

However, as previously stated, the Court determined that the 80% reduction in value is an excessive unsupported adjustment and will not be applied to the vacant land value of Unit B. As a result the Court deducted the after value of economic unit B of $136,000 from the before value of $153,000 and found a vacant land value loss of $17,000 attributable to Unit B. Combining the decrease in vacant land value of Unit A, $54,000, with the decrease in vacant land value of Unit B, $17,000, the Court finds a total vacant land value loss of $71,000.

Mr. Marchitelli determined that the value of the subject property as improved did not change from before the taking to after the taking. He concluded that the taking did not result in any severance damages to the property. He determined that there were $8,300 in site improvement damages(4) .

The Court finds that no damages were sustained as a result of the installation of the sound barrier wall. Although there is a modicum of lost visibility for vehicles traveling east on 347, there is no right to be located adjacent to a public highway or to have traffic pass by one's property. It is well settled that there is no award of consequential damages because the owner's property is no longer visible to passing motorists (Acme Theatres v State of New York, 26 NY2d 385, 390 [1970]).

The taking of a temporary easement entitles the landowner to recover the loss in rental value of the land encompassed within the temporary easement during the term of the appropriation plus further damage, if any, caused to the property (Matter of Kadlec v State of New York, 264 AD2d 420 [2d Dept 1999]).

Rental value of the land encompassed within the temporary easement is calculated by multiplying the square footage of the temporary easement area by the square foot value of the land after the appropriation. That figure is then multiplied by an interest rate for an annual rate of return which is then divided by 12 to arrive at a monthly rental.

There is no dispute that the temporary easements measure 3,775 square feet in total and the official termination date of the temporary easements was July 28, 2017. Defendant divided the temporary easements among commercial and residential boundaries, determining there was 2,234 square feet in the commercial portion of the land and 1,541 square feet in the residential portion of the land.

With respect to the rental damages for the use and occupancy of the land encompassed within the temporary easement, in the commercial portion, the court finds that the amount of $24 per square foot as set forth by defendant to be the appropriate value of the land. Accordingly, the Court multiplies 2,234 square feet by $24 and calculates a total value of $53,616. With respect to the residential portion, the court finds that the amount of $11 per square foot as set forth by defendant, prior to the 80% discount, to be the appropriate value of the land. Accordingly, the Court multiplies 1,541 square feet by $11 and calculates a total value of $16,951. The total of $70,567 is multiplied by 8%, the rate of return, for a value of $5,645 per year or $470 per month. Multiplying $470 by 41 months the Court finds and awards $19,270 in damages related to the rental value of the land encompassed within the temporary easement.

Thus the court awards a total of $19,270 in temporary easement damages.

Accordingly, claimant is entitled to $79,300 in direct damages(5) and $19,270 for damages related to rental value of the land encompassed within the temporary easement for a total award of $98,570 with statutory interest from the vesting date of February 21, 2014 to the date of decision and thereafter to date of entry of judgment (see CPLR 5001 and 5002). Suspension of interest is not warranted since the notice of acquisition was served by certified mail, return receipt requested and not by personal service (Sokol v State of New York, 272 AD2d 604 [2000]; see also EDPL 514 [B]).

The award to claimant herein is exclusive of the claims, if any, of persons other than the owners of the appropriated property, their tenants, mortgagees or lienors having any right or interest in any stream, lake, drainage, irrigation ditch or channel, street, road, highway or public or private right-of-way or the bed thereof within the limits of the appropriated property or contiguous thereto; and is exclusive also of claims, if any, for the value of or damage to easements or appurtenant facilities for the construction, operation or maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer or railroad lines. To the extent the claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act section 11-a (2).

All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

The Chief Clerk of the Court is hereby directed to enter said Judgment accordingly.

May 29, 2018

Hauppauge, New York

Gina M. Lopez-Summa

Judge of the Court of Claims


1. All figures have been rounded off.

2. Permitted uses in the R-10 district include, single family homes, cemeteries, places of worship, fire or ambulance stations, parks, playgrounds, nature preserves, public libraries, museums, schools or agricultural business.

3. Town of Smithtown Building Zone Ordinance 322-82 C (3)(d).

4. These damages were for the loss of site improvements such as sod, asphalt paving, curbing and a tree.

5. Direct damages include $71,000 for loss of value to the land due to the taking as well as $8,300 for lost site improvements.