Opinion
July 10, 1967
Appeal and cross appeal from a judgment of the Court of Claims which awarded damages in an appropriation case in favor of the claimant. The claimant was the holder of a leasehold of a parcel of property located on Westchester Avenue in the City of White Plains on which he had constructed a Carvel ice cream stand and a macadam parking area. The building was constructed according to Carvel's plans and specifications, and equipped with special custom designed fixtures purchased from Carvel, similar to those installed at other Carvel stands. On January 15, 1959, the State entered upon and took possession of the premises which constituted a de facto appropriation and, on August 18, 1959, the State filed its appropriation map with the County Clerk. Claimant was not aware of the taking until March, 1959, when he visited the property and found that the highway construction had blocked off the property from any automobile access. He continued to pay his obligations under the lease through August, 1959, and in November, 1960 the building and fixtures were demolished by the fee owner at the request of the City of White Plains. The Court of Claims awarded the claimant the sum of $27,400 for all damages with interest thereon from January 15, 1959 to the date of entry of judgment. There was included, as an award for fixtures, the sum of $11,400, and the State appeals herein from that portion of the award which the State contends should be deleted from the total sum of damages. The State challenges the claimant's evidence as to the value of the fixtures, since claimant's expert never had an opportunity to inspect and appraise them. Claimant's expert testified that he had examined photographs of claimant's fixtures as they were installed prior to the taking; that he had examined the building plans filed with the Building Department of the City of White Plains; that he had visited similar Carvel ice cream stands; that he made one previous appraisal of a Carvel stand; and that the bill of sale for claimant's equipment was $17,100 for the complete package. Claimant testified that all the items in the bill of sale were installed in the building at the time of taking. His expert further testified to the separate reproduction cost of each fixture for a total of $17,174 which he depreciated at the rate of 10% in the sum of $1,712 making a total net amount in the sum of $15,462. The State offered no evidence as to the value of the fixtures contending that the claimant had failed to prove any damages as to the fixtures. The Court of Claims fixed the reproduction cost of the fixtures at $17,100 and allowed a depreciation of one third of the total, awarding the sum of $11,400 for the fixtures. The claimant appeals from the fixtures award on the ground that it is inadequate by reason of the method of depreciation adopted by the court. Where an expert is asked to give his opinion of the value of property, it is not a fatal objection that he has no personal knowledge of the property. He may base his opinion upon facts proved by other witnesses, or upon facts assumed and embraced within the case. ( Slocovich v. Orient Mut. Ins. Co., 108 N.Y. 56; Whiton v. Snyder, 88 N.Y. 299.) The opinion of witnesses is admissible as to the value of property where the witness is shown to be acquainted with the value of similar things. (Richardson, Evidence [8th ed.], § 384.) In view of the destruction of the property before claimant's witness had an opportunity to examine it, his testimony as to the value of the fixtures, using all available information, was sufficient to establish sound value of the fixtures by taking reproduction cost less depreciation. "The State offered no evidence whatever as to value, so the figures of the claimant's concededly qualified expert are undisputed. Under the circumstances this was sufficient proof of damages." ( Marraro v. State of New York, 15 A.D.2d 707, affd. 12 N.Y.2d 285.) The trial court was not bound to accept claimant's expert's opinion evidence even though it stood uncontradicted, but it could not adopt a different valuation without some demonstrable and objective basis for its finding. Under the circumstances here, the claimant had demonstrated, by acceptable evidence, the sound value of the fixtures which valuation should have been adopted by the trial court. In a companion case, the Court of Claims awarded the owner of the fee, as part of his award, the sum of $2,000 as the depreciated value of the blacktop parking area. On this appeal, the claimant asserts his right to the award for the blacktop since it was constructed for him and paid for by him. The owner of the fee and the tenant claimant entered into a stipulation as to the division of the award, which provided that the entire award for the land should be paid to the fee owner, and the awards for the building, trade fixtures, and rental value should be paid to the tenant. The trial court's finding that the title to the blacktop with which the parcel had been improved, merged with the fee should not be disturbed. ( Matter of City of New York [ Fairfield Trust], 19 A.D.2d 44.) Claimant further contends that he is entitled to rental value of the premises from the time of the de facto appropriation January 15, 1959, until the de jure appropriation August 18, 1959. It has been held that the time of the appropriation occurs, and the claim accrues, when the property is entered upon and possessed by the State, and that there is only one taking and one claim for damages. ( Utilities Inds. Corp. v. State of New York, 27 A.D.2d 489; Kahn v. State of New York, 27 A.D.2d 476.) Accordingly, the claimant is not entitled to rental value, but only interest. The contention of the State that the claimant is entitled to interest on the award from the date of the de facto appropriation for a period of six months, in addition to interest from the date the claim is filed until entry of judgment, is correct. (Court of Claims Act, 19, subd. 1; Utilities Inds. Corp. v. State of New York, supra.) The judgment appealed from provided for interest on the total award from January 15, 1959 to the date of entry of the judgment, which should be modified by eliminating interest for the period from July 15, 1959 to the date of filing the claim, December 8, 1959. Judgment modified, on the law and the facts, by increasing the award for fixtures from $11,400 to $15,462 making a total award of $31,462, with interest from January 15, 1959 to July 15, 1959, and from December 8, 1959 to the date of entry of judgment and, as so modified, affirmed, with costs to claimant-respondent-appellant. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.