Opinion
# 2012-010-060 Claim No. 119904 Motion No. M-82165
02-27-2013
CRYSTAL RUN ASSOCIATES, LLC v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for partial summary judgment denied.-issues of fact regarding easement access.
Case information
UID: 2012-010-060 Claimant(s): CRYSTAL RUN ASSOCIATES, LLC Claimant short name: CRYSTAL RUN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119904 Motion number(s): M-82165 Cross-motion number(s): Judge: Terry Jane Ruderman BERKMAN, HENOCH, PETERSON, PEDDY & FENCHEL, P.C. Claimant's attorney: By: Saul R. Fenchel, Esq., Of Counsel Daniel M. Lehmann, Esq., Of Counsel HON. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General Third-party defendant's attorney: Signature date: February 27, 2013 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-4 were read and considered by the Court and oral argument was heard on claimant's motion for, inter alia, partial summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits, Memorandum of Law....................................1
Affirmation in Opposition and Exhibits, Memorandum of Law................................2
Reply Affirmation and Exhibits, Reply Memorandum of Law.................................3
Stipulation Supplementing the Attached Exhibit 1 for Exhibit A Attached to Defendant's Affirmation...................4
Claimant seeks, inter alia, partial summary judgment on its appropriation claim. Specifically, claimant seeks an order finding that, as of the date of the State's taking, the remainder of claimant's property has no access to a public roadway and, therefore, as a matter of law, is unmarketable and has no value. Thus, claimant argues that the only issue requiring a trial would be the value of claimant's property before the State's taking. Defendant opposes the motion and argues that, the taking maps expressly provide for each of claimant's remainder parcels to access a highway along the property; thus the remainder properties are not landlocked. Defendant also argues that there are issues of material fact which preclude a granting of claimant's motion for partial summary judgment.
Background
Claimant owned 86± contiguous acres of commercially zoned vacant land in the Town of Wallkill. The property had frontage on New York State Route 17 at exit 122, but had no easement of access to Route 17. The property also had frontage on Crystal Run Road, a town road, with a right of access to Crystal Run Road.
On February 18, 2011, the New York State Department of Transportation took 43.7± acres of claimant's property pursuant to Highway Law § 30, to rebuild and reconfigure Route 17 at exit 122. The State's appropriation encompassed all of claimant's frontage along Crystal Run Road and left a remainder of a 1.1± acre triangular parcel and a 41± acre irregularly-shaped parcel without any frontage or access to Crystal Run Road.
The appropriated property consisted of four parcels designated on the Acquisition Map, each labeled as "W.O.A.," (without access), thereby precluding any implied easement of the remainder to cross the property appropriated. However, the taking map for each of the four parcels also expressly reserved an easement of access for the remainder parcels to access "the highway along" the remainder (Claimant's Ex. D). Claimant argues that since there was no "highway along" the property at the time of the taking, the remainder should be valued as unmarketable at the time of the taking.
In opposition, the State submits the affidavit of Scott Geiger, P.E. detailing the reconfiguration of Route 17 and the relocation of Crystal Run Road which will front both parcels of claimant's remainder when the project is completed. The two-stage project has been "designed, funded, let and the contract awarded" (Affidavit at ¶ 6). Construction is currently underway and the highway along the remainder is "scheduled and expected [for public use] in 2014." Thus, defendant argues that, due to the express easement of access granted to the remainder parcels on the taking maps, the remainder cannot be found to have zero value at the time of the taking.
Analysis
It is well established that "[t]he amount of damages to which the claimant is entitled as the result of an appropriation is to be measured and fixed as of the time of the taking" (Wolfe v State of New York,22 NY2d 292, 295). A property owner is entitled to consequential damages when an appropriation results in the loss of their right to enter and exit their property "unless the condemnee retains 'legal access' - - i.e. a legally enforceable right to entry and exit" (Lake George Assoc. v State of New York, 7 NY3d 475, 480; see Pollak v State of New York, 41 NY2d 909, 910; Gilbert v State of New York, 25 Misc 3d 552, 558). The Court of Appeals has further stated that, "[d]amages are to be quantified based on a calculation of the damages at the time of the taking with no effect given to subsequent efforts to reestablish access [emphasis added]" (Lake George Assoc. v State of New York, supra at 480).
Claimant argues that the remainder is valueless, as a matter of law, because the highway, to which the remainder parcels were granted access in the express easement on the taking maps, was not in existence at the time of the taking. The Court does not find claimant's argument in this regard to be persuasive or supported by case law. Rather, the Court finds that, the cases cited by claimant are inapposite because they address "subsequent efforts" by the State to reestablish access in an attempt to reduce the State's damages after the taking (id.) or a "subsequent limitation on [the State's] original appropriation" (Wolfe v State of New York, supra at 297).
Here, there was an explicit reservation of a right to access made in the original appropriation (see Pollak v State of New York, supra at 910 ["the absence of an explicit reservation of a right of access in the original appropriation may not be cured by provisional expedients, offered by and subject to the grace of the State"]). Further, claimant did not establish that "as of the date of the appropriation the State was indefinite about an intention to build a highway" (Rosebar Realty Corp. v State of New York, 45 AD2d 798, 799). Rather, the express access easement granted at the time of the taking evinces an intention to provide both remainder parcels with frontage and assess to a highway along the property. Indeed, the construction project is underway and the highway along the remainder is scheduled and expected for public use in 2014. Accordingly, the Court finds that claimant failed to meet its burden of establishing that, at the time of the taking, the remainder had no legal right of access and was therefore unmarketable.
The Court finds that there are issues of fact which must await a trial. Specifically, there are numerous issues surrounding the State's express easement of access to "the highway along" the remainder (Claimant's Ex. D) and the physical location of this highway as it relates to the remainder, such as, but limited to, whether the highway will in fact run along the remainder and what impact, if any, there will be to claimant if the highway does not abut the remainder.
Accordingly, claimant's motion for partial summary judgment is DENIED (see Alvarez v Prospect Hosp., 68 NY2d 320).
The Court will set a new date for the filing and exchange of appraisals and expert reports.
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims