Opinion
January 17, 1962
APPEAL from a judgment in favor of claimant, entered March 27, 1961, upon a decision of the Court of Claims (RICHARD S. HELLER, J.), awarding a sum of money for damages for appropriating part of the claimant's property.
In 1957 the State undertook the widening and reconstruction of State Route No. 14 in the Village of Watkins Glen. The usable area of the claimant's gasoline station, which was located on a corner, was reduced approximately 40% by the widening of both contiguous streets.
The cost of relocation of the islands, wiring, the sign and the grading amounted to $9,879.54. The total award was $48,000. This was a partial taking and the claimant used the value before and after method of proof based on the capitalization of income in arriving at the respective valuations. Where there is a complete taking, the capitalization method is proper (see Katz v. State of New York, 10 A.D.2d 164; Sunnybrook Realty Co. v. State of New York, 11 A.D.2d 888, affd. 9 N.Y.2d 960; Matter of City of New York [ Lincoln Sq. Slum Clearance], 15 A.D.2d 153), but here where there is only a partial taking there is no basis for the application of such a method.
After reviewing all of the evidence of the before and after value excluding the capitalization formula, we are of the opinion that the amount awarded for the land taken (0.235 of an acre) is excessive and should be reduced to $20,000, together with the cost of relocation of $9,879.54 for a total award of $29,879.54, with interest, and as so modified the judgment should be affirmed, with costs to the respondent.
Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ., concur.
Judgment modified, on the law and the facts, by reducing the amount for the land taken to $20,000, together with the cost of relocation of $9,879.54 for a total award of $29,879.54, with interest, and as so modified, the judgment is affirmed, with costs to the respondent.