Opinion
May 4, 1970
In a condemnation proceeding, claimants with respect to Damage Parcels 1 and 2 appeal from a final decree of the Supreme Court, Queens County, dated March 20, 1967 and made after a nonjury trial, which awarded them $367,000. Decree modified, on the law and the facts, by increasing the award from $367,000 to $440,000. As so modified, decree affirmed, with costs to appellants. In our opinion, the award of $367,000, predicated upon an apparent allowance of about $8.35 per square foot for a plot of 44,000 square feet, was inadequate. Under the credible proof of value, we find that the subject property had a fair market value of $10 a square foot, considering particularly the reasonable possibility for its undisputed highest and best use for a high-rise multiple dwelling improvement, a factor which the trial court should have, but did not, include in its valuation (cf. Matter of City of New York [ Shorefront High School — Rudnick], 25 N.Y.2d 146, 148-149). While the condemnor city's expert was free to consider the lack of financing for high-rise improvements before and at the time of vesting (p. 149), that ephemeral factor could not serve to detract from the value of the claimants' land for such improvement ( Matter of City of New York [ Clearview Expressway], 9 N.Y.2d 439, 445). Moreover, the city, both at Special Term and in this court, conceded that, by reason of corner and plottage increments, the subject property should be enhanced to an assumed compensable area of 50,600 square feet. The learned Justice at Special Term did state that his award was inclusive of corner influences, frontages and plottage increments, but his calculation of $8.35 per square foot does not in our opinion adequately allow for the inclusion of those increments. Under the circumstances, the award should be increased to $440,000, applying the value of $10 per square foot to the physical dimensions of the subject property. Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.