Opinion
# 2019-045-506 Claim No. 124599
06-28-2019
154 TERRY ROAD, LLC v. THE STATE OF NEW YORK
Flower, Medalie & Markowitz By: Edward Flower, Esq. Hon. Letitia James, Attorney General By: Charles E. Gary, Assistant Attorney General
Synopsis
Appropriation trial decision.
Case information
| UID: | 2019-045-506 |
| Claimant(s): | 154 TERRY ROAD, LLC |
| Claimant short name: | TERRY ROAD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124599 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Flower, Medalie & Markowitz By: Edward Flower, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Charles E. Gary, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 28, 2019 |
| 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, 154 Terry Road, LLC, 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 June 30, 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 3025 (c), the Court deems that the pleadings are conformed to the proof presented at trial.
The vesting date is May 7, 2014. Map 1289 was for the fee taking of 1,138 square feet which ranged 6-17 feet in depth. Map 1290 was for the temporary easement of 4,029 square feet which was approximately 4 feet in depth. The temporary easement was extinguished on July 28, 2017. There was no dispute between the parties that 154 Terry Road, LLC is the owner of the property.
The subject property is a level and on grade rectangular shaped parcel located at 154 Terry Road in the Town of Smithtown, County of Suffolk. The parcel is located on the southwestern corner of Terry Road and Rhoda Avenue with the majority of its frontage on Rhoda Avenue.
The subject property is split zoned Neighborhood Business District (NB) and Residential 10 District (R-10).
Prior to the appropriation, the subject property contained 21,862 square feet and was improved with a two-story, multi-tenanted office building having a total gross area of 5,087 square feet. The building has 4 office suites; two of which are medical offices and 31 parking spaces. There are two curb cuts on Rhoda Avenue for the property. The approved site plan delineates 34 parking spaces.
The purpose of the taking was for a raise in grade on Terry Road. As a result of the taking, the property was reduced in size by 1,138 square feet which is 5.2% of the total land area. The property taken included concrete curbing along the north and east property lines. The taking created a pavement slope of approximately 17.6% between the sidewalk and the subject property. The claimant contends that the taking created zoning non-conformities, unsafe driveway access and decreased marketability for the subject property. Defendant contends that the impact from the taking can be mitigated by implementing costs to cure.
During the construction phase of this project, a concrete slab that resembles a sidewalk was installed in the temporary easement area. It is unclear whether or not it was installed totally within the temporary easement area or if it encroached on the remainder. Richard Neugebauer, an employee of Grace Industries who contracted with the State to perform the work on the subject property testified in this matter. He testified that his company installed the curb, retaining wall and another sidewalk on the subject property. He did not know the purpose of the sidewalk but stated that it was constructed in an effort to improve the area and because it looked better than what was there. He testified that although he did not know the dimensions of the concrete slab, it was limited to the temporary easement area. He also testified that he did not know the exact length of time it was there. He explained that he first became aware of the slab at the end of 2016 and that it was removed in February 2017.
John McGullam, a Civil Engineer employed by New York State Department of Transportation, testified that he was the project manager for this project. He explained that he learned that the concrete slab had been installed on claimant's property on November 22, 2016. It was his understanding that it was built because the contractor was trying to make an improvement to what was already there. He also testified that it was removed on February 24, 2017 because it was built in the temporary easement area.
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 at 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]).
Frank Marotta, the property manager and husband of one of the owners of the subject property, testified that he had been the property manager since February 16, 2010. The property was purchased for $830,000 and at that time there were two first floor tenants. The second floor was empty and was renovated to create an additional two rental units. Additional improvements were also made to the property which included four new HVAC units, abandonment of the underground oil tank, a new roof with new leaders and gutters, re-flooring of the common area, sound proofing of the ceiling, upgraded signage, new decorations and sealing of the parking lots. Mr. Marotta testified that $208,000 was expended in making these improvements. After the repairs were made, all four offices were rented and occupied.
Mr. Marotta also testified that he took a series of photographs between April 7 and May 24, 2016 which depict heavy equipment and trucks blocking the entrance to the east parking lot of the property. The heavy equipment and trucks damaged the middle of the parking lot so that it was unusable as a parking lot. He stated that the contractor's trucks and equipment were used outside of the temporary easement area which was reserved for a work area. He also took photographs on December 7, 2016 which depict what appears to be a sidewalk with curbing in the temporary easement area. The area immediately next to the sidewalk is covered with dead leaves but appears to be in an unfinished state. These photographs also depict large holes in the center of the parking lot. Mr. Marotta took photographs on March 30, 2017 which depict the portion of the parking lot closest to Terry Road with broken asphalt. The last set of photographs were taken on April 4, 2018 and depict the asphalt after it was repaired by defendant.
Thomas Filazzola, an engineer licensed in the State of New York, testified on behalf of claimant. He stated that he visited the subject property, reviewed its survey and various other documents and source information. He described the property as being split into NB and R-10 zoning with only a small portion in the R-10 zoning. The property is 21,862 square feet and improved with a two-story 5,087 square foot building with 31 parking stalls. There was an east and west parking area on the property. The taking impacted the eastern parking area which had spaces for 14 vehicles.
Mr. Filazzola set forth that prior to the taking the subject property had legal but non-conforming status. He met with the Town Planning Department where they informed him that there were no violations on the property and the property had a legal certificate of occupancy. The taking created two bulk dimension/zoning non-conformities. The building front yard setback was reduced from 54.46 to 48.33 feet where 50 feet is required and the parking was reduced by 10 parking spaces creating a parking deficit. He explained that 10 parking spaces were lost because the taking decreased the depth of the site by 11 feet.
Mr. Filazzola testified that the existing curb cut on Rhoda Avenue interferes with the parking stalls after the taking. Before the taking, the curb cut was 40 feet from Terry Road while after the taking it is 23 feet from Terry Road. The new curb cut created vehicular maneuverability and safety issues. He explained that the location of the curb cut violates good engineering practices and would not be approved if requested. Additionally, the structural integrity of two on site sub-surface drainage structures were compromised by the use of heavy equipment on the subject property.
Mr. Filazzola also set forth that during construction, the subject property suffered from 3 encroachments outside of the taking and temporary easement area including a protrusion of a sub-surface drainage unit, a portion of the retaining wall built on the subject property and the removal of pavement. However, defendant's contractors remedied all of the encroachments at some point in time.
Mr. Filazzola also opined that the taking reduced the sanitary density yield. However, because the site was built in 1976, prior to the enactment of the Sanitary Code, the subject property was grandfathered in and was permitted a flow that was higher than that allowed under the current Code. Under Code requirements, prior to the taking, the subject property would be allowed 301 gallons per day and after the taking the site would be allowed 285.45 gallons per day. This reduction represents a loss of yield of 261.2 square feet of rentable office space.
Mr. Filazzola also opined that the taking affected the aesthetics of the property by changing it from one with green space and trees into a concrete property with an industrial railing and retaining wall. He explained that this change would leave the subject property in contrast to most if not all other similar properties in the immediate area. He conceded that the trees prior to the taking were in the State's right of way. He also stated that the retaining wall was built in a serpentine alignment which resulted in an awkward alignment of the railing.
Claimant's appraiser Elinor Brunswick, prepared an appraisal report in this matter and testified on claimant's behalf. She contends that the highest and best use of the property as vacant would be to develop a commercial building as currently improved.
In analyzing the land value of the subject property prior to the taking, as if vacant, Ms. Brunswick utilized the sales comparison or market data approach. She selected five different sales of vacant commercial land within the Town of Smithtown in valuing the subject property. After making certain adjustments to the sales which she determined were appropriate she found a before taking per square foot value of the subject property as vacant of $20. She then multiplied $20 by 21,862 square feet and found a before taking vacant land value of $440,000.
Ms. Brunswick then used the sales comparison approach to determine the market value of the property as improved before the taking. She selected 4 comparable sales within 5 miles and in close proximity to the subject property. After making certain adjustments to the sales which she determined were appropriate she found an adjusted sales price range from $240 per square foot to $271 per square foot. She adopted $265 per square foot as the appropriate value and found the market value of the property as improved before the taking was $1,350,000.
Ms. Brunswick also used the income capitalization approach to determine the market value of the property as improved before the taking. She selected four comparable leases of office buildings which included both professional and medical offices. She made adjustments that she deemed appropriate. She selected $23 per square foot as the fair market rent of the property for professional office space and $28 per square foot for the medical office space. She multiplied $23 by 2,500 square feet and determined that $57,500 was the economic rent for the professional offices. She also multiplied $28 by 2,500 square feet and determined that $70,000 was the economic rent for the medical offices.
Ms. Brunswick applied a 3% vacancy rate as well as $46,447 in expenses. She determined a net income of $77,228 and a capitalization rate of 6.5%. Ms. Brunswick applied 6.5% to the annual net income which resulted in an overall valuation of the subject property of $1,200,000 using the income approach.
Ms. Brunswick reconciled the two approaches giving strong weight to both as the property would appeal to an owner/user or to an investor. She opined that the fair market value of the property as improved before the taking was $1,275,000.
Ms. Brunswick reviewed Mr. Filazzola's report and took into account his conclusions regarding the effects of the taking. She adopted his finding of a non-conformity in the 50 foot front yard setback. As a result she made adjustments to the zoning category and the capitalization rate.
Ms. Brunswick also adopted Mr. Filazzola's finding that the loss of parking spaces rendered the property non-conforming to the town requirements. Before the taking the subject property had 31 of the 34 approved parking spaces. Ms. Brunswick opines that the taking eliminated an entire row of 10 parking spaces along and facing Terry Road. She also stated that these 10 parking spaces were set back from the property line, some further than others, but were non-conforming to the 6-foot town setback requirement. The loss of these 10 spaces represents a 32% decrease in parking and is considered a substantial loss to the property.
Ms. Brunswick conceded that only having 31 out of the required 34 parking spaces was a non-conformity but she argued that it would be easier to get a 3 parking space variance rather than a 13 parking space variance. The loss of parking spaces also affects the vitality of the property since less people could park and visit the property. She reflected this loss in the parking ratio category, in the rental value and in the development of the capitalization rate. A second adjustment to account for the necessity of a parking variance, was made in the zoning category and in the development of the capitalization rate. Ms. Brunswick explained that in her opinion she did not duplicate damages because one aspect of the damages is the actual loss and the other is the necessity of getting a variance.
Ms. Brunswick found that another effect of the taking is the creation of a unsafe driveway configuration at the easterly access to the subject property on Rhoda Avenue. This was due to the proximity of the curb cut to Terry Road. She conceded that she was unaware of the town requirements with respect to the necessary distance between a curb cut and an intersection. Ms. Brunswick reflected this loss in the site access category in the sales comparison approach, in the rental value and in the development of the capitalization rate.
Ms. Brunswick determined that another effect of the taking is the loss of the landscape buffer with trees that set the property off from Terry Road and provided attractive curb appeal. Due to the change in grade, the buffer area was replaced with an 8-inch retaining wall topped with a metal rail. Ms. Brunswick conceded that the trees and grass buffer were on the property line. This loss is reflected in the marketability category in the sales comparison approach and in the development of the capitalization rate.
Ms. Brunswick also took into account the reduction of the sanitary density yield from 301 to 285.45 gallons per day which results in a loss in yield of 261.2 square feet of rentable floor space due to the taking. This loss is reflected in the marketability category in the sales comparison approach and in the development of the capitalization rate. Another effect of the taking was damage to structural portions of the subject property due to construction. However, the State's contractor repaired these items.
The last effect of the taking was that the easterly parking lot, that was subjected only to a 371 square foot temporary easement, was unusable from April 6, 2016 through July 28, 2017 due to use and damage.
After the taking, Ms. Brunswick determined that the highest and best use of the property was as it was currently improved. Ms. Brunswick used the same sales in analyzing the after taking value of the subject property as vacant. After making an adjustment for marketability to take into consideration the retaining wall with fencing on top of it, Ms. Brunswick found an after taking land value of $18.50 per square foot. She then multiplied $18.50 by 20,724 and found a vacant land value of $383,000 after the taking.
Ms. Brunswick used the same sales in analyzing the after taking value of the subject property as improved. After making adjustments which she determined were appropriate for zoning, parking, site access and marketability to take into consideration the effects of the taking, she found an adjusted sales price range from $115 per square foot to $150 per square foot. She adopted $140 per square foot as the appropriate value and opined that the market value of the property as improved after the taking was $710,000.
Ms. Brunswick performed the same analysis using the income capitalization approach to value the subject property as improved after the taking. Based upon the effects of the taking, she made adjustments to the comparable rentals and determined that the market rent should be modified to $19.50 per square foot for professional spaces and $23.00 per square foot for medical offices. Ms. Brunswick also adjusted the vacancy and credit loss factor from 3% to 5% to reflect the increase of tenant turnover and credit loss due to diminished parking as well as access and safety issues. Ms. Brunswick provided a letter from a tenant, the podiatrist, who explained to the landlord that he was not renewing his lease in 2015 because of the loss of parking and the turmoil of construction. Ms. Brunswick reflected all effects of the taking in the capitalization rate by adjusting the capitalization rate to 8.5%. She then arrived at an after taking valuation of $650,000.
Ms. Brunswick determined that the final market value of the property as improved, after the taking was $675,000. She reached this figure by reconciling the sales and income capitalization approaches.
Ms. Brunswick also calculated that the loss of site improvements to the subject property was $15,000.
Ms. Brunswick next calculated damages due to the temporary easement. She multiplied 371 square feet by $18.50 per square foot and reached $6,864. She determined that 12% was the appropriate rate of return for the subject property and multiplied 12% by $6,864 to find damages due to the temporary easement of $824 per year or $69 per month.
Ms. Brunswick also calculated damages for what she called a defacto temporary easement for three months from April 6, 2016 through July 6, 2016 when a construction drum was placed in the center of the east parking lot. The construction drum caused damage to a drainage basin thereby making the lot unusable. Due to the loss of parking during that time, she deemed a 50% rental loss for that time period to be reasonable. Using $100,938 as the effective annual rental amount she determined that the rental loss was $50,469. Dividing $50,469 by 12 months, Ms. Brunswick calculated that $4,206 was lost each month. She then determined a total loss for 3 months as $12,617.
She also calculated cost to cure damages based upon the damage caused by the heavy construction equipment entering and exiting the east parking lot. She adopted Mr. Filazzola's costs of $34,670 for re-paving and repairs to the drainage basins as well as the connecting wall. However, these items were repaired by defendant subsequent to her report.
Ms. Brunswick also prepared a supplemental report with the assumption that the temporary easement was a defacto taking and thus the total taking area was 1,509 square feet. She found the same before and after values of the subject property. The difference in damages are reflected in her determination that there were $30,180 in direct damages (1,509 square feet multiplied by $20 square foot) and severance damages in the amount of $569,820.
Ms. Brunswick also calculated damages for what she called the defacto temporary easement from April 6, 2016 through July 28, 2017 because the State of New York used the entire easterly parking lot, caused damages to the drainage basin and made the lot unusable for parking. Due to the loss of parking, she deemed a 50% rental loss for the time period to be appropriate. Using $100,938 as the effective annual rental she determined the loss was $50,469. She divided $50,469 by 12 months to determine a $4,206 monthly loss. She then multiplied $4,206 by 16 months for a total rental loss due to the defacto temporary easement of $67,296.
Christopher Tartaglia, a professional engineer, testified on behalf of defendant in this matter. He stated that he reviewed Town of Smithtown records, the certificate of occupancy, permits, the Karl survey and the approved site plan. Mr. Tartaglia set forth that the subject property is an office building with east and west parking accessible by two curb cuts on Rhoda Avenue. He determined that the west parking lot was accessible by a 25 foot wide two-way driveway and the east parking lot was accessible by a 28 foot wide two-way driveway. He also stated that although the site plan approved 34 parking stalls he observed 32 parking stalls. He explained that his office used the Karl survey in preparing its own plans depicting the site prior to the taking as well as plans with the taking lines marked and post construction plans which are all drawn to scale.
Mr. Tartaglia described the taking as varying in depth from approximately 6 feet to 17 feet along the frontage of Terry Road for a total of 1,138 square feet. The temporary easement had an additional depth of approximately 4 feet beyond the taking area for a total of 371 square feet. He stated that, as a result of the taking, the town required 50 foot front yard setback was reduced from 56.1 feet to 49.8 feet. He opined that it is reasonably likely that a variance would be granted by the town because the non-conformity was created by a New York State taking. The fee taking created a raise in grade of Terry Road and as a result an unacceptable large slope was created where the parking area is located. Therefore, a retaining wall, varying in height from 1 foot to almost 2 feet in height with a metal railing for fall protection was installed.
Mr. Tartaglia also stated that the fee taking intruded on 10 parking stalls along the new Terry Road right of way line. He opined that the existing parking non-conformity could be maintained by re-striping the parking stalls and relocating the easternmost curb cut along Rhoda Avenue four feet west. He opined that the impact of the taking could be ameliorated with a cost to cure for re-striping the parking stalls and relocating the curb cut. His plan also provides for a 27.3 foot back-up aisle which is slightly larger than the town's 24 foot requirement. Mr. Tartaglia also testified that after the taking, the parking would no longer comply with the 6 foot buffer requirement due to insufficient space for the back-up aisle. He explained that prior to the taking, 6 out of the 10 parking spaces complied with the 6 foot setback and that there was enough room for all of the spaces to comply with the 6 foot setback. In the after taking scenario all of the 10 spaces are non-conforming to the setback and abut the retaining wall. Mr. Tartaglia opined that because the stall size and back-up aisle were code compliant, there were no safety issues.
Mr. Tartaglia set forth that the property's calculated sanitary density was approximately 356.8 gallons per day which was in excess of the site's allowable flow of 301.2. However, because this septic system pre-existed the Suffolk County Health Department guidelines, it is a grandfathered system and 358 gallons per day was permitted. After the taking there was a reduction in the overall site size of 1,138 square feet. As a result, there was a reduction of 15.6 gallons per day which equates to a reduction of 260 square feet of non-medical office space or 156 square feet of medical office space. He opined that this reduction would be imposed only upon a future redevelopment of the property.
Mr. Tartaglia also stated that the fee taking disturbed concrete curbs along the north and east of the property which will require compensation.
Mr. Tartaglia testified that the temporary easement disturbed a portion of the eastern parking area's asphalt pavement which was later restored by the State's contractor. He also noted that during the construction phase, the State contractor installed a concrete slab that was partially located in the temporary easement area. The concrete slab was removed and a retaining wall with a metal railing was built in the fee taking area.
Mr. Tartaglia concluded that there were no impacts to the property with the exception of the temporary removal of the 10 parking spaces fronting Terry Road. He set forth that once the easternmost curb is relocated and a new curb at the north end of the property is installed, the 10 parking spaces would be restored.
Mr. Tartaglia determined that all the impacts of the taking could be remedied with a cost to cure. A variance for the setback non-conformity would cost $18,000. Mr. Tartaglia determined costs for reconstructing the parking lot as follows: $5,000 in design and engineering costs; $6,354 for the relocation of the curb on Rhoda Avenue; $377 for re-striping the parking stalls; $1449 in compensation for the concrete curbs. He also stated that the temporary easement damages required $1429 for the installation of other concrete curbing. Mr. Tartaglia determined a total of $32,609 in cost to cure costs.
Defendant's appraiser, Richard Marchitelli prepared an appraisal report in this matter and testified on defendant's behalf. He contends that the highest and best use of the property as vacant is for commercial development and as improved, the highest and best use of the property remains a multi-tenanted office building if certain design improvements are made and governmental variances are obtained. He testified that the subject property last sold in 2010 for $830,000 or $163 per square foot. However he was unaware of the building's condition or the status of its tenancies at that point in time.
In analyzing the land value of the subject property prior to the taking, as if vacant, Mr. Marchitelli utilized the sales comparison or market data approach. He selected 4 different sales of vacant commercial land in Suffolk County. Notably, only one property was located in the Town of Smithtown. After making certain adjustments to the sales which he determined appropriate Mr. Marchitelli found a before taking per square foot value of $22. He then multiplied $22 by 21,862 and found a before taking vacant land value of $480,964.
Mr. Marchitelli then used the sales comparison approach to determine the market value of the property as improved before the taking. He selected 4 comparable sales, two of which were over 6 miles away from the subject property. The other two properties were approximately 6 miles from the subject property. After making certain adjustments to the sales which he deemed appropriate, as values increased between 2010 and 2014, he found an adjusted sales price range from $122 per square foot to $177 per square foot. He determined that market conditions necessitated a 3% per annum increase to sale 4 only. He adopted $165 per square foot as the appropriate value and opined that the market value of the property as improved before the taking was $840,000.
On cross-examination, he stated that sale 1 was the closest to the subject property and closest in terms of size. The topography of the property slopes downward. It was also brought out that this property was a high vacancy property at the time of sale which would decrease the selling price. However, Mr. Marchitelli made no adjustment for those factors.
Mr. Marchitelli's sale 2 was in common with Ms. Brunswick's sale 8. This sale was within 2 blocks of the Smithtown LIRR station and 116 feet of its frontage was along the train tracks. This sale also had no basement but Mr. Marchitelli did not believe an adjustment was warranted because the price per square foot was comparable to the price per square foot of other buildings. Ms. Brunswick made a 10% adjustment in favor of the subject for age and condition while Mr. Marchitelli made a 5% adjustment against the subject property.
Mr. Marchitelli also utilized the income capitalization approach to determine the market value of the subject property as improved before the taking. In this case, Mr. Marchitelli provided a list of 10 comparable rentals ranging in price from $17.75 to $30.51 per square foot. He included the address, size, lease type and commencement date. He did not include any further abstracts of the properties but made generalized and blanket adjustments. He arrived at a market value of $25 per square foot. He multiplied $25 by 5,087 square feet and determined that $127,175 was the economic rent for the subject property.
Applying a 6% vacancy rate and $51,756 in expenses, Mr. Marchitelli determined a net operating income of $67,788 and a capitalization rate of 8%. Mr. Marchitelli also utilized the mortgage/equity band of investment technique.
Mr. Marchitelli applied the rate of 8% to the annual net income which resulted in an overall valuation of the subject property of $850,000 using the income approach.
After reconciling the sales comparison and income approaches, Mr. Marchitelli concluded that the market value of the property as improved prior to the taking was $850,000. On cross-examination, Mr. Marchitelli explained that the property was purchased in 2010 for $830,000 but this fact did not change his opinion because values had gone down prior to 2010 and values were beginning to slowly increase.
Mr. Marchitelli reviewed Mr. Tartaglia's report and considered his opinion as it pertained to the effects of the taking. He opined that as a result of the taking, the physical appearance, functionality and appeal of the building are unchanged. He also testified that during construction, parking was temporarily reduced to 22 spaces and thus the subject property temporarily lost 10 parking spaces. Mr. Marchitelli set forth that as a result of the taking the curb cut closest to Rhoda Ave. must be shifted 4 feet west in order to preserve on-site vehicular circulation and to accommodate the retention of 10 parking spaces. The taking also resulted in the construction of a 1 to 1.75 foot high retaining wall with an additional 3.5 foot metal railing on top of it. Mr. Marchitelli opined that the removal of 4 trees along Terry Road did not damage the property because unimpaired exposure and visibility to traffic makes it easy for visitors to recognize their destination. Mr. Marchitelli then opined that defendant's contractor mitigated damages by creating the retaining wall, relocating the existing water meter/valve that was located in the fee taking area, removing the non-functioning domestic water well, and restoring the asphalt pavement within the temporary easement area. Next, Mr. Marchitelli opined that the remaining effects of the taking, such as the front yard setback non-conformity, re-striping of the parking spaces, removal and shifting the curb cut 4 feet and replacement of a curb within the eastern parking lot could all be mitigated by a cost to cure in the amount of $32,608.98.
Mr. Marchitelli then concluded that as a result of the taking, the highest and best use of the property had not changed and that the remainder had suffered no severance damages. Thus, Mr. Marchitelli concluded that the after taking value of the property as improved remained at $850,000. However, he indicated in his report that the highest and best use of the property as improved is its existing use if design improvements are made and governmental variances are obtained. Mr. Marchitelli determined that there were $25,036 in direct damages and $32,609 in cost to cure damages.
Mr. Marchitelli calculated damages due to the temporary easement. He multiplied 371 square feet by $22 per square foot and reached $8,162. He determined that 8% was the appropriate rate of return for the subject property and multiplied 8% by $8,162 or $55 per month.
Claimant's Supplemental Reports
Mr. Filazzola testified that he reviewed the High Point Engineering report and in his opinion the parking lot configuration would not be approved by the Town of Smithtown which would result in a parking lot that is far less maneuverable than it was before the taking. He explained that the parking lot configuration fails to incorporate the required 6 foot setback and contained an access aisle which was reduced from 37 feet to 26.5 feet. Mr. Filazzola did however concede that the Town requires a minimum 24 foot access aisle. Additionally, he determined that the southernmost stall is non-functional. He stated that if a driver found no available space in the parking lot, there was insufficient space to turn around a vehicle and the driver would have to back out of the parking lot. Mr. Filazzola opined that this space should be striped so as to be used as a turnaround area. He also stated that the handicap accessible stall is not properly striped and as such there would only be three handicap accessible spaces not four. The retaining wall and the configuration of the stalls also eliminates the once existing bumper overhang.
Mr. Filazzola also opined that the proposed curb cut is unsafe since it is only 26 feet from Terry Road which is unreasonably close to the corner. This will result in the potential blocking of vehicles with resulting dangerous conflicts and unsafe movements for southbound Terry Road motorists seeking to enter the site.
He also set forth that the aesthetics of the property were negatively impacted by various factors. The metal rail on the retaining wall is unique to this property and does not reflect the residential/suburban character of the site but rather portrays an industrial character. The removal of the street trees also negatively impacted the aesthetics of the property. He described the inside appearance of the wall as unsightly and far less desirable than the previous configuration. He also discussed site drainage issues.
Lastly, Mr. Filazzola opined that before the taking, it was physically possible to conform to the 6-foot setback requirements, however after the taking, it is no longer possible to comply.
Ms. Brunswick filed 2 supplemental appraisal reports. Ms. Brunswick opined that the before values did not change. She determined that 10 parking stalls would not be able to be striped. She adopted Mr. Filazzola's opinions about the southernmost stall being needed for turn around purposes. She also opined that the northernmost most parking stall is not functional because of its placement abutting the sidewalk. She explained that cars parked in that space would conflict with sidewalk pedestrians when opening the doors. She conceded on cross-examination that this northernmost parking space was immediately adjacent to the sidewalk prior to the taking as well. She also adopted Mr. Filazzola's finding that there would only be three handicap accessible parking spaces.
Ms. Brunswick concluded that ignoring the requirement for the 6-foot buffer, only 7 parking spaces could be re-striped. Overall parking would be reduced to 28 parking spaces where the site plan approved 34 parking spaces. As such a 10% parking variance would be necessary if any future changes are made to the property. Ms. Brunswick also opined that due to the taking, the access aisle is smaller which impacts on-site maneuverability. She added that it is her opinion that people will not pull up to the retaining wall as close as depicted on Mr. Tartaglia's report for fear of hitting their bumpers on the wall. Vehicles that do not park abutting the wall will further reduce maneuverability. She also opined that a prudent property owner would install wheel stops to prevent conflicts with the wall. However, installation of the wheel stops would render parking non-conforming. She thus made adjustments in the parking and zoning categories in the Sales Comparison Approach as well as in the development of the capitalization rate in the Income Capitalization Approach.
Ms. Brunswick concluded that after the taking, the vacant land value decreased to $18.50 per square foot due to the site being aesthetically compromised because of the retaining wall and the metal railing. She determined that the vacant land value of the subject property after the taking was $383,000.
Ms. Brunswick used the same sales in analyzing the after taking value of the subject property as improved. After making adjustments which she determined were appropriate she determined $165 per square foot is the appropriate value and opined that the market value of the property after the taking was $840,000.
Ms. Brunswick performed the same analysis using the income capitalization approach to value the subject property as improved after the taking. Based upon the effects of the taking, she made adjustments to the comparable rentals and determined that the market rent should be modified to $21.00 per square foot for professional spaces and $26.00 per square foot for medical offices. Ms. Brunswick also adjusted the vacancy and credit loss factor from 3% to 5% to reflect the increase of tenant turnover as well as credit loss due to maneuverability, access and safety issues. She reflected all effects of the taking in the capitalization rate by adjusting the capitalization rate to 8.25%. She then arrived at an after taking valuation of $800,000.
Ms. Brunswick determined that the final market value of the property as improved, after the taking was $825,000. She reached this figure by reconciling the sales and income capitalization approaches.
She also determined there were $15,000 damages for lost site improvements.
Ms. Brunswick also re-calculated damages for the defacto temporary easement from April 6, 2016 through July 28, 2017 because the State of New York used the entire easterly parking lot, which caused damages to the drainage basin and made the lot unusable for parking. The property owner was never advised when use of the parking lot would cease. Due to the loss of parking, she deemed a 50% rental loss for the time period to be reasonable. Using $111,625 as the effective annual rental she determined the loss was $55,812. Divided by 12 months, $4,651 was lost each month for 16 months for a total of $74,417.
Ms. Brunswick then determined the cost to cure the damages caused by the temporary easement which included $20,670 to repave the east parking lot, $9,000 to fix the drainage basin, and $5,000 to repair the connecting wall. Ms. Brunswick found a total cost to cure of $34,670.
Lastly, Ms. Brunswick calculated damages due to the temporary easement. She multiplied 371 square feet by $18.50 per square foot and reached $6,864. She determined that 12% was the appropriate rate of return for the subject property and multiplied 12% by $6,864 for $824 per year or $69 per month.
Defendant's Rebuttal
Mr. Marchitelli, defendant's appraiser prepared a rebuttal report to Ms. Brunswick's reports. Claimant objected to its introduction into evidence as it was an attempt to introduce evidence that should not be before the Court. Specifically, on page 7, there is a series of 100 unidentified sales created by adding the value for 5 different years to determine an average price of sale. There is no information with regard to location, buyer, seller, property use, amount of land, parking, traffic, etc. The same process again appeared on page 8 with 22 different unidentified sales. This time, defendant's appraiser indicated that they were within 5 miles of the subject property and attached an appendix with the sale date, sale price and building square footage. There were no other details of the sales.
The Court excluded portions of Mr. Marchitelli's rebuttal report from being entered into evidence. The Court concluded that a wide sampling of market data without supporting specific data for the properties used in the sampling, prevents the Court from being able to assess the reliability and relevance of the information provided. As such, §§ 4; 5; 7 and Exhibit 1 were stricken from Mr. Marchitelli's rebuttal report.
Mr. Marchitelli opined that Ms. Brunswick exaggerated the effects of the taking and damages. By way of example, he cited to Ms. Brunswick's adjusted sales for the non-conforming front yard setback, which is either .2 feet as set forth by Mr. Tartaglia or 1.67 feet as set forth by Mr. Filazzola. Mr. Marchitelli stated that the $191,250 reduction in value of the subject property could be offset by a $18,000 cost to cure for obtaining a variance. With respect to parking, Mr. Marchitelli opined that there was no permanent loss of parking. He determined that Ms. Brunswick's damages of $255,000 for the loss of 10 parking spaces and $191,250 for the loss of 3 parking spaces were excessive and disproportionate. Any damages she found to the property could be offset by the cost to cure.
With respect to site access, Mr. Marchitelli opined that although the intersection of Terry Road and Rhoda Avenue had shifted west after the taking, closer to the existing curb cut, the curb cut will also be shifted west after the ten parking spaces are relocated outside of the new right of way line. Thus the damages found by Ms. Brunswick could again be offset by a cost to cure.
Mr. Marchitelli opined that damages for the loss of trees, grass buffer, as well as the installation of the retaining wall and metal railing does not reduce the value of the property by $127,500. He stated that the loss of trees, metal railing and retaining wall are "bogus issues" since tenants would want the property to be readily visible.
Mr. Marchitelli also stated that assuming the loss of rent attributable to a defacto temporary easement was compensable, loss of rent is overstated because Ms. Brunswick used the gross rent/income. The proper measure of damages would be the net rent/income of $55,400 or $65,660 depending on which of her calculations were used.
Mr. Marchitelli also testified that the property was bought in 2010 for $830,000. The $1,275,000 value attributed by Ms. Brunswick to the property is a 54% increase in value in a weak Suffolk County office market. He explained that, even if you applied claimant's time adjustment of 8.5%, the value of the property based upon the prior sale would be $900,000.
Mr. Marchitelli concluded that claimant's damages could be cured for $38,000 instead of the $510,000 Ms. Brunswick found to be appropriate. He based his conclusion on Mr. Tartaglia's opinion that it would be reasonably likely to obtain the variances. He conceded that he did not set forth in his reports any instances where the Town of Smithtown approved a similar variance.
Analysis
Ms. Brunswick and Mr. Marchitelli both agree that the highest and best use of the subject property as vacant is for commercial development and as improved by its existing use. However, Mr. Marchitelli conditioned the highest and best use on obtaining governmental variances and making design improvements. The Court concludes that the highest and best use of the subject property is as set forth by Mr. Marchitelli.
Ms. Brunswick and Mr. Marchitelli employed similar methodology and were only $2 apart in calculating the vacant land value of the subject property prior to the taking. The Court finds that the credible evidence supports a finding of $21 per square foot as the appropriate per square foot value for the subject property as vacant prior to the taking.
Claimant contends that the 371 square foot temporary easement constituted a de facto appropriation or permanent easement due to defendant's construction, on November 22, 2016, of a sidewalk or concrete slab in the entirety of the temporary easement area. The concrete slab deprived the property owner of all use of the area notwithstanding the rights reserved to the owner on the taking map. The concrete slab was installed not for use as a work area but as a permanent feature to assist with the change of slope caused by the road work. The concrete slab was removed on February 24, 2017 when defendant realized that it was constructed in the temporary easement area. Defendant contends that it did not interfere with claimant's property beyond the de jure appropriation and that claimant failed to establish a de facto appropriation.
A de facto appropriation cause of action against a governmental defendant allows a landowner to recover just compensation from the governmental defendant when there has been a taking in fact of their property even though no formal exercise of the power of eminent domain has been attempted (Corsello v Verizon N.Y., Inc., 18 NY3d 777 [2012]). It is based upon a showing that the government has intruded onto the citizen's property and interfered with the owner's rights to such a degree that the conduct amounts to a constitutional taking (O'Brien v City of Syracuse, 54 NY2d 353 [1981]). A de facto taking can consist of either a permanent ouster of the owner or a permanent interference with the owner's use, possession and enjoyment of the property (Mickel v State of New York, 77 AD2d 794 [1980], affd 54 NY2d 858 [1981]). In this case, the interference took place wholly in the temporary easement area and was temporary in nature, as such, the court finds there was no de facto appropriation (Bronxville Palmer v State of New York, 36 AD2d 10 [3d Dept 1971]).
Thus, the Court finds that the taking only involved 1,138 square feet of property and using $21 per square foot as the appropriate per square foot value for the subject property as vacant prior to the taking awards $23,898 in direct damages.
For the improved sales analysis prior to the taking, the Court considered the sales offered by the appraisers and places primary weight on claimant's sales 6 and 8 and defendant's sales 2 and 3 as these sales are the most comparable to the subject property. "The 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]). An arm's 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]). Based upon the credible evidence presented to the Court, considering the purchase price and the improvements done to the property subsequent to the purchase, the Court finds $215 as the appropriate per square foot value of gross building area, inclusive of land. Multiplying $215 by 5,087 square feet the Court finds a before taking value of the subject property as improved via the sales comparison approach to be $1,093,705.
Claimant's sale 8 and defendant's sale 2 are the same property.
With respect to the income capitalization approach, based upon the credible evidence, the Court finds that Ms. Brunswick's calculations for potential gross income, $127,500, and expenses, $46,447, are more credible while Mr. Marchitelli's calculations for vacancy, 6%, and capitalization rate, 8%, are more credible. The Court then applied the vacancy rate to the subject property's potential gross income and then deducted expenses in order to arrive at the subject property's net operating income. The Court then divided net income by the capitalization rate to determine the value of the property as improved before the taking via the income capitalization approach to be $917,537.50.
Thus, after considering the credible evidence and reconciling the sales comparison approach with the income capitalization approach, the Court finds the appropriate market value of the property as improved before the taking to be $1,000,000.
With respect to the taking's impact on the property, the parties agree that the setback non-conformity was created, that there was an impact to the parking area and that there were site access issues. However the parties do not agree on the measure of damages. Claimant found severance damages to be appropriate while defendant determined that a cost to cure would be sufficient to remedy the damages.
The cost to cure approach to compensation is appropriate where an item of damage caused by the State's taking that negatively affects the market value of the property can be cured at a cost less than the diminished value attributable to the damages caused by the taking (Fodera Enters. v State of New York, 275 AD2d 85 [2d Dept 2000]). When the proposed cost to cure requires a permit, the State must meet a threshold burden of presenting evidence as to the likelihood that the permit would be issued (id. at 88).
The State failed to meet its burden in establishing that a permit for moving the curb cut would be granted. Defendant's evidence failed to establish the criteria used to decide an application for a curb cut or whether the curb cut proposed by them, as a cost to cure, would meet such criteria. Moreover, defendant's evidence established that the new curb cut would not be located on claimant's property and as a result claimant would need to seek permission from whatever governmental authority has jurisdiction over that right of way. The cost to cure theory of damages may not be used to mitigate consequential damages where the cure must be accomplished by going outside the bounds of the property (B & B Food Corp. v State of New York, 96 AD2d 893 [2d Dept 1983] Gluckman v State of New York, 37 AD2d 870 [3d Dept 1971]). In this instance, defendant's cure is improper since it could only be accomplished by going outside the boundaries of claimant's property.
Similarly, defendant's parking reconfiguration is dependent upon relocation of the curb cut and re-striping of the parking stalls. However, due to defendant's failure to establish that a governmental permit would be approved for the relocation of the curb cut, the Court is unable to consider Mr. Tartaglia's plan for reconstructing the parking lot as a cost to cure.
The Court was presented with evidence that the parking on the subject property was non-conforming in 2 different ways. The first non-conformity concerns the number of allocated parking spaces on the property. The approved site plan called for 34 parking spaces on the property however there were either 31 parking spaces as argued by claimant or 32 parking spaces as put forth by defendant on the property prior to the taking. The discrepancy is due to whether or not there are 3 or 4 parking spaces in an area not impacted by the taking.
The second non-conformity is with respect to the 6-foot parking setback which was required by the Town of Smithtown. The experts agreed that all 10 spaces that abutted Terry Road were set back from Terry Road at some distance, varying from 1.5 feet to 5 feet. The experts also agreed that prior to the taking, all 10 parking spaces could conform to the 6 foot setback requirement and that after the taking none of the 10 parking spaces could conform to the requirement because to do so would render the required back-up aisle non-conforming.
Thus, based upon the credible evidence presented, the Court is constrained to find that the taking eliminated the entire row of 10 parking spaces which abutted Terry Road. The loss of 10 parking spaces represents a 32% reduction in parking and creates the need for a parking variance. When parking spaces are deemed lost or impaired as a result of an appropriation consequential or severance damages are warranted, where after the taking there is a calculable deficiency in parking as well as repercussions on the economic value of the subject property (Martabano v State of New York, 120 AD2d 712 [2d Dept 1986]). Moreover, damages have also been awarded where the taking's impact rendered the parking spaces less functional which "could perhaps make the property less desirable and therefore reduce the value" (Berg Investors, LLC v State of New York, UID No. 2009-031-504 [Ct Cl, Minarik, J., 2010]). With regard to the possibility of obtaining a parking variance in the future, the evidence did not establish that a parking variance would be granted. In calculating the damages to the property, claimant reflected this loss in both the parking ratio and zoning category in the sales comparison approach and in the development of the capitalization rate in the income capitalization approach.
Additionally, although the Court agrees that the retaining wall and metal railing on top give the property an industrial look and is not in keeping with the surrounding area, the evidence established that taking of the landscape buffer and the trees was on State property and is thus not compensable. Damages resulting from the taking of another's land are not compensable (RA Three RDS, LLC v State of New York, 169 AD3d 731 [2d Dept 2019]). The Court also finds that the retaining wall did not decrease the value of the land after the taking.
With respect to the property setback non-conformity, the credible evidence established that the zoning setback non-conformity was merely .2 feet. The Court finds that the expense of obtaining a variance should be permitted as an element of consequential damages where the resulting violation of the building setback non-conformity is very minor (see Ross v State of New York, 89 AD2d 709 [3d Dept 1982]).
Based upon the foregoing, the Court modified Ms. Brunswick's adjustments to comparable sales which she used for determining the after taking value of the subject property as improved via the sales comparison approach. The Court eliminated the adjustment for marketability due to the loss of landscape buffer and trees. There is a small sanitary density loss of yield caused by the taking but as Ms. Brunswick did not assign a separate portion of the marketability adjustment for sanitary density, claimant has not established a specific amount of consequential damages for the sanitary density loss of yield. Defendant did not assign damages for the sanitary density loss of yield. Thus, the Court is unable to ascertain and award damages for the sanitary density loss of yield.
Ms. Brunswick made two adjustments for the loss of parking, one in zoning and one in parking ratio. In the zoning adjustment, Ms. Brunswick's adjustment includes both the relatively minor front yard setback and one for the loss of parking. In the parking ratio adjustment, claimant reflects the loss of 10 parking spaces since the subject property would need to apply for a variance should any future alterations be made to the subject property. The credible evidence established that the loss of parking is adequately addressed by Ms. Brunswick as a parking adjustment only.
For the improved sales comparison analysis after the taking, the Court considered the comparable sales offered by Ms. Brunswick and placed primary weight on claimant's Sales 6 and 8 as these sales are the most comparable to the subject property. Deducting the adjustments the Court found were inapplicable to the comparable sales, the Court finds the after taking value of the subject property as improved to be $987,000 or $194 per square foot.
Using the income capitalization approach to value the subject property as improved after the taking, the Court adopted Ms. Brunswick's adjustments to market rent as well as her calculations for potential gross income, $106,250, and expenses, $45,538. The Court did not adopt Ms. Brunswick's increase in vacancy rate but rather found that the vacancy rate of 6% as set forth by Mr. Marchitelli in both the before and after scenarios to be more credible and applied that rate to its calculations. Similarly, the Court adopted Mr. Marchitelli's capitalization rate in the after taking of 8% as the appropriate rate to be applied. The Court then applied the vacancy rate to the subject property's potential gross income and then deducted expenses in order to arrive at the subject property's net operating income. The Court then divided the net income by the capitalization rate to determine the value of the property as improved after the taking via the income capitalization approach to be $680,000, rounded off.
Thus, after considering the credible evidence and reconciling the sales comparison approach with the income capitalization approach, the Court finds the appropriate market value of the property as improved after the taking to be $850,000. Subtracting the after taking value of $850,000 from the before taking value of $1,000,000 the Court awards claimant $150,000 in severance damages.
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 $21 per square foot to be the appropriate value of the land. Accordingly, the Court multiplies 371 square feet by $21 and calculates a total value of $7,791. The total of $7,791 is multiplied by 10%, the rate of return, for a value of $779 per year or $65 per month. The temporary easement was in effect from May 7, 2014 through July 28, 2017, which is 38 months and 21 days. Multiplying $65 by 39 months, the Court finds and awards $2,535 in damages related to the rental value of the land encompassed within the temporary easement.
Claimant's appraiser contended that 12% was the appropriate rate of return and Defendant's appraiser contended that 8% was the appropriate rate of return.
Additionally, claimant seeks damages due to the contractors' use of the parking lot outside of the temporary easement area. Specifically, claimant contends that commencing on April 6, 2016 defendant used the entire easterly parking lot causing damages to the drainage basin and made the lot unusable. A construction drum was placed in the center of the parking lot from April 6, 2016 through July 6, 2016. Claimant also contends that the property owner was never informed of the date the State would cease using the parking lot. Claimant made the assumption that all use of the parking lot terminated on July 28, 2017. Defendant contends that it did not interfere with claimant's property beyond the de jure appropriation and that claimant failed to establish a de facto appropriation.
The credible evidence established that from April 6, 2016 through May 24, 2016, defendant had trucks, equipment, large construction cones, and drainage rings or drywells in and around the easterly parking lot. The location of the aforementioned construction equipment was not confined to the 371 square foot temporary easement work area. Consequently, the Court finds that claimant has established that the entire parking lot was unusable from April 6, 2016 through May 24, 2016.
Generally, a claimant is entitled to compensation for any loss suffered as a result of the taking of a temporary easement (Ronmar Realty, Inc., v State of New York, 121 AD3d 1085 [2d Dept 2014]). A temporary easement that leaves the property owner under constant threat that his use of the property may be curtailed or stopped is likely to affect business or other financial decisions even if use is never interrupted in fact (McCurdy v State of New York, 10 NY3d 234 [2008] see Village of Highland Falls v State of New York, 44 NY2d 505 [1978]). Here, as opposed to Ronmar, claimant established that the State's use of the entire parking area actually interfered with claimant's highest and best use of its property. Claimant's evidence established that the State's use of the entire parking area from April 6, 2016 through May 24, 2016 negatively affected claimant's rental stream during that period of time.
Thus, the Court awards damages for the period from April 6, 2016 through May 24, 2016 for defendant's use of claimant's property outside the temporary easement area. The Court adopted Ms. Brunswick's calculations of a per month rental stream loss of $4,651 or $155 per day. Multiplying $155 by 48 days, the period of encroachment, the Court awards $7,442 in damages.
Accordingly, claimant is entitled to $23,898 in direct damages; $18,000 in cost to cure damages for obtaining a variance; $150,000 in severance damages; $2,535 for damages related to rental value of the land encompassed within the temporary easement; and $7,442 for loss of rental income as a consequential/severance damage for a total award of $201,875 with statutory interest from the vesting date of May 7, 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 [2d Dept 2000]; see also EDPL 514 [B]).
The Court adopted Mr. Tartaglia's cost for obtaining a variance for the setback non-conformity.
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.
June 28, 2019
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims