Opinion
# 2019-045-011 Claim No. 121388 Motion No. M-92760 Cross-Motion No. CM-92983
04-09-2019
BELLMORE AVE. CASA, LLC v. THE STATE OF NEW YORK
Cronin, Cronin, Harris & O'Brien, P.C. By: Richard P. Cronin, Esq. Hon. Letitia James, Attorney General By: Charles E. Gary, Assistant Attorney General
Synopsis
Defendant's motion to dismiss appropriation claim and for summary judgment due to claim being premised on the closing of an access permit rather than a taking. Claimant's cross-motion for an order finding that the State left claimant with unsuitable access to its property which constituted a de facto appropriation.
Case information
| UID: | 2019-045-011 |
| Claimant(s): | BELLMORE AVE. CASA, LLC |
| Claimant short name: | BELLMORE AVE. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121388 |
| Motion number(s): | M-92760 |
| Cross-motion number(s): | CM-92983 |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Cronin, Cronin, Harris & O'Brien, P.C. By: Richard P. Cronin, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Charles E. Gary, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 9, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on these motions: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-M; Defendant's Memorandum of Law in Support; Claimant's Notice of Motion for Partial Summary Judgment; Claimant's Affirmation in Support with annexed Exhibits A-Q; Defendant's Affirmation in Reply and in Opposition to Claimant's Cross-Motion; and Claimant's Affirmation in Opposition.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 and/or 3212 seeking an order dismissing the claim or, in the alternative, precluding claimant's appraisal report at trial as well as the related testimony of claimant's appraiser. In response, claimant, Bellmore Ave. Casa, LLC, has brought a cross-motion pursuant to CPLR 3211 seeking an order finding that defendant's actions left claimant with unsuitable access to its property, that defendant's actions constituted a de facto appropriation and that defendant's appraisal report violated 22 NYCRR 206.21 and should be precluded from trial.
The underlying claim in this matter involves real property with a mailing address of 515 Route 111, Hauppauge, New York. The property is also known on the Suffolk County Tax Map as Section 156, Block 2, Lots 9.3 and 9.7.
Claimant acquired the subject property on September 26, 2007 from Newport Partners Realty Co., LLC, who had acquired the subject property as well as Lots 9.5 and 9.6 in 2005 from Cedar Ridge Properties, LLC.
Defendant provided an undisputed history of the subject property since 1970 with supporting documents as exhibits to its prior motion in this matter as well as the current motion.
In 1970, defendant appropriated certain portions of the subject property from one of claimant's predecessor's in interest through its eminent domain procedures. The acquired land was located between the pavement/curb of State Route 111 and the boundary of the subject property. The acquired land is known as Lot 54. The land was acquired in connection with anticipated improvements to State Route 111 (see Def Exh E). At some point subsequent to 1970, the property was subdivided into separate tax parcels Lot 9.3, Lot 9.5, Lot 9.6 and Lot 9.7.
In and around 1973, claimant's predecessor in interest submitted a Site Plan to the Town of Smithtown, seeking approval for a three story office building to be constructed on present-day Lot 9.3. Thereafter, on October 30, 1973, the Town of Smithtown approved the site plan with conditions.
At or around the same time claimant's predecessor in interest applied to the New York State Department of Transportation for a Highway Work permit for a driveway from Lot 9.3 to traverse over Lot 54.
On August 6, 1973, in response to the application for access to State Route 111, defendant notified claimant's predecessor in interest that it can issue the requested highway work permit subject to certain conditions. The owner was required to prepare a letter indicating that the driveway was to serve the building and parking as shown on the site plan. Also additions or expansion for the development of adjacent property may require changes to the access scheme.
In response to defendant's correspondence of August 6, 1973, claimant's predecessor in interest sent correspondence to defendant dated August 14, 1973 stating in part that the owners of the Medical Arts Plaza of Smithtown were willing to be subject to the conditions of the State Department of Transportation.
Subsequently, defendant issued the highway work permit. The permit approved an opening to the east side of State Route 111 to install one 25 foot intersection type driveway to provide access from Lot 9.3 to State Route 111. The permit was subject to nine specific responsibilities of the permitee and specifically the New York State Department of Transportation Commissioner's reservation, paragraph (9) (C) which stated that the Commissioner of Transportation reserves the right to modify fees and to revoke or annul the permit at any time at his discretion without a hearing or the necessity of showing cause (see Def Exh H; 17 NYCRR 131.21; Highway Law § 52).
Thereafter, in 1976, claimant's predecessor in interest applied to the Town of Smithtown for site plan approval to construct a second building on present-day Lot 9.5.
On November 3, 1976, the Town of Smithtown Director of Planning wrote to the owners of the subject property requesting certain changes to the proposed site plan. Specifically, the removal of the curbing between the subject site on the south side in order to permit proper traffic circulation between the two sites.
The buildings on Lot 9.3 and Lot 9.5 both required the highway work permit to traverse over defendant's property (Lot 54) to gain access to State Route 111. In addition, in accordance with the request of the Town of Smithtown Planning Department, any proposed curbing located between the two buildings was eliminated so that proper circulation of traffic was permitted between the two sites.
Claimant's predecessor in interest made a second application for a highway work permit for access to State Route 111 which was issued by defendant on October 14, 1976. The second highway work permit was subject to the same conditions and reservations as the permit issued in 1973 and specifically included the same paragraph (9) (C) which once again stated that the New York State Department of Transportation Commissioner reserves the right to modify fees and to revoke and annul the permit at any time, at his discretion, without a hearing or the necessity to show cause (see Def Exh I; 17 NYCRR 131.21; Highway Law § 52).
On October 19, 2005, Cedar Ridge Properties, LLC which owned all of the lots 9.3, 9.5, 9.6 and 9.7 at that time, executed a "Declaration of Easement." The Declaration provided for an easement of ingress and egress from State Route 111 to and from lots 9.7, 9.6, 9.5 and 9.3 as well as a cross parking easement. However, the easement was never recorded, signed and consented to by all parties intended to be bound by the easement (see Cl Exhs H & I). Claimant submitted a report from First Choice Abstract as well as a supporting affidavit which suggest that the Declaration was created "to provide a false sense of access to the property" prior to claimant's purchase of the subject property (see Cl Exhs H & I).
Newport Partners Realty Co., LLC acquired Lots 9.3, 9.5, 9.6 and 9.7 from Cedar Ridge Properties, LLC. In 2007, claimant acquired Lots 9.3 and 9.7 from Newport Partners Realty Co., LLC (see Def Exh F).
At the time claimant acquired Lots 9.3 and 9.7 in 2007, the highway work permits with all of the conditions and reservations were still in place. The subject property enjoyed ingress and egress from Route 111 through a driveway that ended in a Y-shape. The southerly access driveway lead to claimant's property at 515 Route 111, lot 9.3, by traversing over the State owned parcel, Lot 54. The northerly access driveway lead to claimant's neighbor which has title to 517 Route 111, lot 9.5, again by traversing over the State owned parcel, Lot 54.
Claimant confirms that access to these lots was pursuant to the highway work permits issued by defendant in 1973 and 1976.
Upon purchasing the subject property, claimant applied to defendant for a six-unit condominium association to be built on the subject property, lot 9.3 with a combined value of $3,671,220.
On December 4, 2009, defendant filed an appropriation map entitled: East Islip-Smithtown Branch, S.H. 1208 in the Office of the Clerk of Suffolk County (see Def Exh J).
By Map No. 1044, Parcel 1050, defendant acquired title in fee to a 353 square foot strip of land from Lot 9.7. The acquired strip has a depth of 7 feet along the southern property line of Lot 9.7 and runs in a northerly direction for 57 feet, narrowing to a depth of 6 feet along the northerly property line.
By Map 1045, Parcel No. 1051, defendant acquired a 616 square foot temporary easement located along the eastern lot line of the remainder of Lot 9.7, extending a depth of 11 feet along the southern property line and running in a northerly direction for 56 feet. The temporary easement was acquired for the purpose of a work area for use and exercisable during the construction or reconstruction of the highway (see Def Exh J).
By Map No. 1093, Parcel No. 1111, defendant acquired a permanent easement that encumbers the entirety of the remainder of Lot 9.7. The permanent easement contains 9,459 square feet. It has 57 feet of frontage along the eastern property line and a depth of 174 feet (see Def Exh J).
Defendant did not acquire any property interest in Lot 9.3 (see Def Exh J).
Additionally, on or about October 2010, in connection with the project described in the December 4, 2009 appropriation map, defendant enlarged a sump (drainage basin) on State owned property (Lot 54) located adjacent to the subject property. The work required defendant to clear space to store vehicles on the State owned parcel so that work could be performed on the project. As a result, defendant revoked the 1973 highway work permit thereby completely removing the roadway access to the southerly driveway of the Y-shaped driveway leading to lot 9.3. The 1976 highway work permit remains in effect and the northerly access driveway remains open.
On February 1, 2012 claimant filed a claim and then on June 4, 2012 claimant filed a "Verified Complaint." The document titled "Claim" was assigned claim number 120867 by the Office of the Chief Clerk of the Court of Claims and the "Verified Complaint" was assigned claim number 121388. On April 20, 2016, the Court consolidated claims 120867 and 121388 under claim number 121388. Throughout the history of this case the parties have treated the Verified Complaint as the claim in this matter.
Claimant refers to the document titled claim as a notice of claim.
Expert reports have been fully exchanged in this action.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
Prior to claimant's purchase of the subject property, claimant purchased a title report in connection with the transaction. The title insurance company stated in its insurance policy that it could not insure loss or damages which arise by reason of, inter alia, for loss of access from lot 9.3 to lot 9.7 or State Route 111. The title insurance policy specifically states:
"Title to lot 54, which lies between lot 9.7 on the west and 9.3 on the east, was acquired by the State of New York by filing of map 150 parcel #58 S.H. #1208. This was an acquisition in fee which vested fee simple absolute in the State, effectively landlocking lots 9.3. Notwithstanding the easement recitals in various deed of record. No access can be insured from lots 9.3 to lot 9.7 or S.R. 111" (see Cl Exh C).
Claimant was therefore put on notice prior to purchasing the subject property that there was considerable risk involved regarding access to State Route 111 from lot 9.3 and that access to Lot 9.3 could not be insured. Lot 9.3 is an interior parcel without frontage to State Route 111 and was separated from State Route 111 by Lot 54, defendant's property. Claimant's own proof shows that an easement running over Lot 54, defendant's property, was never recorded, signed and consented to by all parties (see Cl Exhs H & I). There was also the suggestion that a purported easement may have been drafted by a prior owner of the subject property in order "to provide a false sense of access." (see Cl Exhs H & I). Thus, any purported easement over defendant's property is not legally binding.
Additionally, the work permit did not establish a property interest over Lot 54 (Benderson Dev. Co. v State of New York, 60 AD2d 986 [4th Dept 1978], affd 46 NY2d 717 [1978] ). Claimant is bound by the plain terms of the permit as well as the rules and regulations governing such permits which state that the Department of Transportation reserves the right to modify and to revoke or annul a permit at any time, upon a determination within its sole discretion, and without a hearing (id.; Def Exhs H & I; 17 NYCRR 131.21; Highway Law § 52).
Claimant never obtained a legal interest over Lot 54 and without an enforceable legal right of access, claimant is not entitled to consequential damages to Lot 9.3 due to defendant's closure of the driveway.
When the State partially takes property, the owner is entitled to not only the value of the land taken (direct damages) but also to any consequential damages which arise from the State's use of the parcel taken (RA Three Rds, LLC v State of New York, 169 AD3d 731 [2d Dept 2019]). Consequential or severance damages may occur if there is a diminution in value of the remaining property as a result of the taking (Murphy v State of New York, 14 AD3d 127 [2d Dept 2004]). Consequential damages are limited to damages resulting from the use to which the State puts the property taken and do not encompass those which result from the taking of a neighbors land (RA Three Rds, LLC v State of New York, 169 AD3d 731 [2d Dept 2019]; DuBois v State of New York, 54 AD2d 782 [3d Dept 1976]; Lucas v State of New York, 44 AD2d 633 [3d Dept 1974]).
Defendant has established that claimant had no property interest in the neighboring property upon which the drainage basin was enlarged and any damages resulting from defendant's use of the neighboring parcel, which defendant owned, are not compensable (id.). The only taking in this matter made pursuant to Eminent Domain Procedure Law was along State Route 111 from Lot 9.7.
In opposition, claimant has failed to raise a triable issue of fact.
As a result, the Court finds that defendant's use of Lot 54 and the resultant closure of the southern driveway across Lot 54 does not give rise to consequential damages to Lot 9.3 in this matter. Accordingly, defendant is entitled to partial summary judgment dismissing the claim for consequential damages to Lot 9.3.
Defendant also moves to have claimant's appraisal report stricken from the record since it only values consequential damages to Lot 9.3 and does not value the impact of the takings to Lot 9.7.
Given this Court's aforementioned holding that consequential damages to Lot 9.3 are not compensable in this action, the Court finds it appropriate to strike claimant's appraisal report from this matter and to preclude claimant's appraiser from testifying at trial as the report contains no relevant information as to the compensable measure of damages in this action.
Turning to claimant's cross-motion, claimant is seeking an order finding that defendant's actions left claimant with unsuitable access to its property, that defendant's actions constituted a de facto appropriation and that defendant's appraisal report violated 22 NYCRR 206.21 and should be precluded from trial.
This Court has held, above, that claimant did not possess an enforceable legal right of access across Lot 54. Claimant retains the same legal access to State Route 111 that it possessed when it purchased Lot 9.3.
Claimant retains access to State Route 111 by crossing over Lot 9.5 and then Lot 9.7. Claimant argues that the owner of Lot 9.5 wants to charge it a large fee for traversing Lot 9.5 however the access to State Route 111 must then cross over Lot 9.7 which claimant owns. Presumably claimant could recoup any fee levied by the owner of Lot 9.5 by charging the same amount to it for traversing Lot 9.7.
A de facto taking 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 his property even though no formal exercise of the power of eminent domain has been attempted by the taking agency (Corsello v Verizon New York, Inc., 18 NY3d 777 [2012]). For the reasons stated herein, this Court finds that claimant has failed to establish a de facto taking.
Lastly, claimant has failed to establish that defendant's appraisal report violated 22 NYCRR 206.21.
Therefore, defendant's motion for partial summary judgment and preclusion is granted to the extent stated herein. Claimant's cross-motion is denied in its entirety.
April 9, 2019
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims