Opinion
November 30, 1970
Appeal from a judgment entered December 16, 1969, upon a decision of the Court of Claims, awarding to claimant $34,614 for direct damages and $500 for consequential damages, plus interest, resulting from partial takings in Suffolk County for highway purposes. The takings were from two contiguous tracts in the Town of Islip. The map and description for one were filed on September 11, 1964, at which time it was owned by Malley and Hajek who contracted to sell to Colin Properties, Inc., on September 16, 1964 and conveyed same to claimant by deed dated January 12, 1965. The filing for the second was on September 28, 1964, the owner being Maciejewski who contracted to sell to 112 Park Corp. on January 24, 1965 and transferred title to claimant by deed dated May 1, 1965. At the time of vesting of title (Highway Law, § 30, subd. 6), the properties were zoned "AA" residential, with the requirement of 20,000 square feet per residence. On August 10, 1965, a zoning variance was granted allowing the construction of garden apartments but, in 1968, the variance was revoked and litigation ensued. The Court of Claims, determining that the highest and best use was for garden apartments, found that the acreage value of the 3.846 acres taken was $6,000 per acre, to which it added $3,000 an acre for the probability of rezoning. However, it expressly stated: "No expert testimony was adduced on this essential increment value." This award cannot stand since it violates the well-recognized rule that the increment ascribed to a reasonable probability of a zoning change must have a basis in the evidence ( Waldenmaier v. State of New York, 33 A.D.2d 75, 76; Clearwater v. State of New York, 30 A.D.2d 883, affd. 23 N.Y.2d 1006) and, since the highest and best use of "AA" Residential as urged by the State was different than that found by the Court and urged by claimant, the award cannot be reduced to the amount suggested by the State. Joinder of the properties for valuation was not proper here, since there was no unity of ownership, legal or equitable, at the time of the appropriations ( Vinciguerra v. State of New York, 22 A.D.2d 93; Kessler v. State of New York, 21 A.D.2d 568, 570). Judgment reversed, on the law and the facts, and a new trial ordered, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.