Opinion
April 27, 1971
Appeals from judgments in favor of claimants, upon a decision of the Court of Claims. Claimants were the owners of about 17 acres of land on Route 28 in the Town of Johnsburg, Warren County, State of New York, where they operated a commercial business which included a restaurant, a gift shop, rental cabins, and a gasoline station. The major portion of their land was situated on the southerly side of Route 28, which included all of the buildings. The remaining portion of .708 acre was on the northerly side of Route 28, fronting on the southerly side of the Hudson River. On April 14, 1965, the State, pursuant to the Conservation Law, appropriated about .574 acre of the land on the northerly side of Route 28 and, pursuant to the Highway Law, appropriated the remaining .134 acre on the northerly side of Route 28, together with .966 acre along the entire frontage on the southerly side of Route 28, thereby appropriating a total of 1.674 acres. The main buildings, consisting of the office, gasoline station, gift shop and garage, were all within the appropriated area on the southerly side of Route 28. After the appropriation there remained 17 rental cabins on the southerly side of Route 28. The trial court determined that the highest and best use of the property before the taking was commercial and after the taking as limited commercial. The State concedes that consequential damages are not in dispute, and it is only the award for direct damages that is contested. The State's contention that claimants' appraisal is devoid of probative value is correct. Claimants' appraiser improperly used a cost approach usually confined to only specialty properties; did not establish any after appropriation highest and best use of the property; calculated the after value by subtracting damages from before value ( Acme Theatres v. State of New York, 26 N.Y.2d 385); made no reasonable adjustments of comparable sales: and did not produce a single appropriate comparable. ( Svoboda v. State of New York, 28 A.D.2d 1056; Fredenburgh v. State of New York, 26 A.D.2d 966.) Since there is no range of values, the State appraiser's values must be accepted. He testified that the direct damages were $6,210 and the consequential damages were $10,820 which amounts should be adopted. Judgments modified, on the law and the facts, so as to reduce the award for Claim No. 48589 to $1,470, and the award for Claim No. 50077 to $15,560, together with appropriate interest, and, as so modified, affirmed, without costs. Reynolds, J.P., Staley, Jr., and Sweeney, JJ., concur; Greenblott, J., dissents and votes to reverse and grant a new trial, in the following memorandum, in which Cooke, J., concurs: I vote for reversal and a new trial, agreeing with the majority that the award for direct damages cannot stand. However, in my opinion there should be a new trial on this issue. It is harsh to deprive this claimant, whose property was taken against his will, of an opportunity to present an appraisal which would meet the proper standards.