Opinion
October 31, 1967
Appeal by the defendants from orders of the County Court of Otsego County entered on July 9, 1966 which confirmed the reports of the Commissioners of Appraisal herein. On or about June 18, 1965 the City of Oneonta, pursuant to article 14 of the General Municipal Law, commenced condemnation proceedings to acquire several parcels of land in the Town of Laurens, approximately six miles from the city, for the construction of an airport facility to serve the city. Included in these parcels were 10 acres owned by the defendants Kelley; a farm of 108 acres owned by the defendants Wallace; and a farm of 86.6 acres owned by the defendant Valentine. On July 12, 1965 the County Court of Otsego County appointed Commissioners of Appraisal in each proceeding. The Commissioners, being the same in each proceeding, viewed all the properties on July 27, 1965, and heard all of the proceedings together on August 30, 31, and September 3, 1965. The same experts testified for the plaintiff and for the defendants in each proceeding. Although the properties involved were being used for agricultural purposes, the experts for both sides were agreed that the highest and best use of the properties was for residential and recreational purposes, and all estimates of value were made on that basis. The Commissioners awarded $1,400 to the defendants Kelley for the 10 acres taken, and $200 consequential damages to a two-acre parcel adjoining. The Wallace and Valentine properties were entirely taken and the defendants Wallace were awarded the sum of $9,650, and the defendant Valentine was awarded the sum of $14,000. The defendants contend that the Commissioners gave no meaningful consideration to their appraisals and adopted the plaintiff's appraisals, and that the resulting awards are so inadequate as to shock the sense of justice of the court. The defendants Kelley also contend that the Commissioners should have awarded consequential damages to the remaining 265 acres of their property arising from the operation of the condemned parcels for airport purposes, and that the Commissioners erred as a matter of law by failing to set forth the fair market value of the Kelley property before and after the taking. "The power of the court to reject and set aside the report of commissioners of appraisal in a condemnation proceeding is confined to narrow limits. Every intendment is in favor of the action of the commissioners. Awards will not be set aside for inadequacy unless they are so obviously and clearly wrong that they shock the sense of justice of the court or have been reached upon a wrong theory to the prejudice of one of the parties." ( Matter of Huie [ City of New York], 2 Misc.2d 38, 39, affd. 2 A.D.2d 631.) The issue of value as to each of the parcels was a question of fact to be determined by the Commissioners. They inspected the premises and had the opportunity of observing the witnesses who expressed their theories and divergent opinions. The Commissioners were not required to accept or adopt the opinions of the defendants' expert which were based upon a theory of development for which there were no comparables within the county or, accept as alleged comparables, properties within a developing area less than two miles of the city, the subject property being approximately six miles from the city, there being no evidence of any prospective development of the area near the subject property within the reasonable future. The defendants chose to rely on this type of testimony which the Commissioners could readily disregard as speculative. The plaintiff's experts testified as to reproduction costs, comparable properties and income approach in arriving at their opinions. There is nothing in the record to suggest that they erred in closely following the opinions of the plaintiff's experts or that the awards are so inadequate as to shock the sense of justice of the court. The awards fall within the range of the testimony, and are not based on any erroneous theory of law and should, therefore, be affirmed. ( Matter of Huie [ Fletcher-City of New York], 2 N.Y.2d 168.) Orders affirmed, without costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.