Opinion
527358
12-05-2019
Andrew C. WOEHREL, Respondent, v. STATE of New York, Appellant.
Letitia James, Attorney General, Albany (Owen Demuth of counsel), for appellant. Alfred Paniccia Jr., Binghamton, for respondent.
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. 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 notice of appeal references not only the final judgment, but also the October 2015 order and the June 2016 and August 2017 decisions. Defendant's right to appeal from the October 2015 order terminated upon entry of the final judgment, and the decisions are not appealable papers (see Partridge v. State of New York , 173 A.D.3d 86, 90 n. 1, 100 N.Y.S.3d 730 [2019] ; Rosenheck v. Schachter , 166 A.D.3d 1354, 1354 n. 1, 88 N.Y.S.3d 616 [2018], lv denied 32 N.Y.3d 919, 2019 WL 1348971 [2019] ). The appeal from the judgment brings up for review both the order and the decisions (see id. ).
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] ). 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] ).
The affidavits of the corporate officers formed part of defendant's motion for partial summary judgment and were properly considered by the Court of Claims (see Matter of Lewis v. Cross , 72 A.D.3d 1228, 1230, 897 N.Y.S.2d 783 [2010] ; Musick v. 330 Wythe Ave. Assoc., LLC , 41 A.D.3d 675, 676, 838 N.Y.S.2d 620 [2007] ). Further, although claimant had obtained permission from the holder of the utility easement to use the private roadway, "only seeking permission for use from the record owner negates hostility" (Led Duke v. Sommer , 205 A.D.2d 1009, 1011, 613 N.Y.S.2d 985 [1994] [internal quotation marks, brackets, emphasis and citation omitted] ).
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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 valuation of the motel property under the sales comparison approach, but it took his data and remaining valuations into account. The Court of Claims also found the analysis of defendant's appraiser to be undercut by his testimony and otherwise flawed in numerous respects, resulting in the court making adjustments to the figures underlying the appraiser's estimates of value, all of which the court explained in depth and some of which it connected to the data provided by claimant's appraiser. Thus, although the Court of Claims awarded a higher amount of damages than that advocated for by defendant's appraiser, the reasons for that departure were set forth, and we cannot say that they were "predicated solely and simply on the subjective judgment of" the court or that there was no "evidence in the record to support" them ( Matter of City of New York [Oceanview Terrace] , 42 N.Y.2d 948, 949, 398 N.Y.S.2d 134, 367 N.E.2d 641 [1977] ; see Matter of Rocky Point Realty, LLC v. Town of Brookhaven , 126 A.D.3d 706, 708, 7 N.Y.S.3d 139 [2015] ; Kupersmith v. State of New York , 40 A.D.2d 738, 739, 336 N.Y.S.2d 805 [1972] ).
In view of the foregoing, we need not address claimant's alternative grounds for affirmance.
Garry, P.J., Mulvey and Aarons, JJ., concur.
ORDERED that the appeals from the order and decisions are dismissed, without costs.
ORDERED that the judgment is affirmed, with costs.