Opinion
August 1, 1961
Appeal by the State, on the ground of excessiveness, and cross appeal by claimant, on the ground of inadequacy, from that part of a judgment of the Court of Claims which awarded $4,250,771 damages for the appropriation of certain real property pursuant to the provisions of section 46 of the Mental Hygiene Law. Claimant appeals also from so much of the judgment as denied award for certain creek bed lands. As against expert testimony of values ranging from $1,346,546 to $3,612,200 the court found the value of the buildings and exterior improvements to be $1,975,000 and awarded therefor in that amount. The buildings in some respects did not conform to the requirements imposed by the City of New York and although the War Assets Administration constructed and maintained the buildings without a permit, claimant was obliged to apply for a variance and did obtain a permit for continued operation of the buildings for a 21-year period expiring in 1971. There was testimony by one witness that an extension for 10 years beyond 1971 might be granted by the city. The parties' divergent views as to the weight and effect to be given these factors give rise to the only dispute of any particular moment as to the court's appraisal of the buildings and other improvements. Thus, both parties attack the finding of $1,975,000. each conjecturing the basis upon which it was determined and the State contending that it is "apparent" that the court applied an erroneous depreciation factor by assuming a "legal life" of the improvements for 10 years beyond 1971, while claimant asserts that there is no justification for the conclusion that the city would prohibit use of the buildings even beyond 1981 and that no sufficient basis exists for the limited legal life theory in any event. In our view, the finding did not follow either of the rigid concepts so suggested. The court was bound to give some effect to the fact that the buildings were in use under an expirable certificate of occupancy but was also obliged to consider the possibility of its extension for a fixed or an indefinite period. In its opinion, the court noted that the period "might" be extended "for some 10 years longer" and stated that it would "give this element due consideration in the evaluation of said buildings" and, later in the opinion, stated that it had considered "the life span of buildings and the condition of each building." We find no basis for any contention that an erroneous legal theory was applied by the court and hence no ground for disturbing a finding which is adequately supported by the record. We find contrary to the weight of the evidence, however, the finding of $2,275,771 as the value of the land taken. Although this figure was, superficially at least, within the range of the testimony (four expert appraisals being from $1,060,000 to $3,594,602), the valuations advanced by claimant's witnesses are clearly excessive when measured by all relevant factors proven, other than pure opinion and a somewhat questionable computation of income capitalization. It is probably true that insufficient consideration was given by claimant's experts to the nature of the tract (about 65% of its area being swamp or marsh land and the remainder being partially filled upland some 14 feet below the established city grade) or, alternatively, to the cost of its development; but we find more serious the quite evident failure of the court and of claimant's experts alike to give proper weight to sales of comparable properties and particularly to those shown by the State which seem to us of considerably greater probative force than those upon which claimant relied. We find the value of the land taken as follows: Upland, $968,821; Marshland (Unrestricted), $634,830; Marshland (Business), $169,557; Marshland (Residential), $73,023; Total, $1,846,231. Claimant failed to show title to the creek bed lands for which she sought award. Judgment modified, on the law and the facts, in accordance with this memorandum decision, and, as so modified, affirmed, without costs. Settle order. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur. [ 23 Misc.2d 733.]