Opinion
2014-02-26
In the Matter of VILLAGE OF HAVERSTRAW, appellant-respondent; v. AAA ELECTRICIANS, INC., respondent-appellant.
Watkins & Watkins, LLP, White Plains, N.Y. (John E. Watkins, Jr., Liane V. Watkins, and Matthew S. Clifford of counsel), and Rosenberg & Estis, P.C., New York, N.Y. (Jeffrey Turkel of counsel), for appellant-respondent (one brief filed). Goldstein, Rikon, Rikon & Houghton, P.C., New York, N.Y. (Michael Rikon of counsel), for respondent-appellant.
Watkins & Watkins, LLP, White Plains, N.Y. (John E. Watkins, Jr., Liane V. Watkins, and Matthew S. Clifford of counsel), and Rosenberg & Estis, P.C., New York, N.Y. (Jeffrey Turkel of counsel), for appellant-respondent (one brief filed). Goldstein, Rikon, Rikon & Houghton, P.C., New York, N.Y. (Michael Rikon of counsel), for respondent-appellant.
C. Scott Vanderhoef, New City, N.Y., amicus curiae Rockland County Executive, pro se.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
In a condemnation proceeding, the condemnor, Village of Haverstraw, appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Rockland County (La Cava, J.), entered May 9, 2012, as, upon a decision of the same court entered December 16, 2011, made after a nonjury trial, awarded the condemnee the principal sum of $6,500,000 as just compensation for the taking of the condemnee's real property, and the condemnee, AAA Electricians, Inc., cross-appeals, as limited by its brief, from so much of the same judgment on the ground of inadequacy.
ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
In a case involving the taking of property, “[t]he measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time” (Matter of Board of Commr. of Great Neck Park Dist. of Town of N. Hempstead v. Kings Point Hgts., LLC, 74 A.D.3d 804, 805, 903 N.Y.S.2d 451;see Matter of Rochester Urban Renewal Agency [Patchen Post], 45 N.Y.2d 1, 8, 407 N.Y.S.2d 641, 379 N.E.2d 169;Matter of County of Suffolk [Firester], 37 N.Y.2d 649, 652, 376 N.Y.S.2d 458, 339 N.E.2d 154;Chester Indus. Park Assoc., L.P. v. State of New York, 103 A.D.3d 827, 962 N.Y.S.2d 236;Matter of Metropolitan Transp. Auth. [Washed Aggregate Resources, Inc.], 102 A.D.3d 787, 789–790, 958 N.Y.S.2d 405;New York Cent. Lines, LLC v. State of New York, 101 A.D.3d 966, 967, 957 N.Y.S.2d 252;Matter of Village of Dobbs Ferry v. Stanley Ave. Props., Inc., 95 A.D.3d 1027, 1029, 944 N.Y.S.2d 241;Gyrodyne Co. of Am., Inc. v. State of New York, 89 A.D.3d 988, 989, 933 N.Y.S.2d 375). Where an increment is added to the value of vacant land to reflect its development potential, “the specific increment which is selected and applied must be based on sufficient evidence and be satisfactorily explained” (Matter of County of Suffolk [Firester], 37 N.Y.2d at 653, 376 N.Y.S.2d 458, 339 N.E.2d 154;see Matter of Breitenstein v. State of New York, 245 A.D.2d 837, 839–840, 666 N.Y.S.2d 769). Moreover “[i]t is necessary to show that there is a reasonable possibility that the property's highest and best asserted use could or would have been made within the reasonably near future, and a use which is no more than a speculative or hypothetical arrangement may not be accepted as the basis for an award” (Matter of Village of Dobbs Ferry v. Stanley Ave. Props., Inc., 95 A.D.3d at 1029, 944 N.Y.S.2d 241;see Matter of Metropolitan Transp. Auth., 86 A.D.3d 314, 320, 927 N.Y.S.2d 67;see also Broadway Assoc. v. State of New York, 18 A.D.3d 687, 688, 795 N.Y.S.2d 735;Matter of Estate of Haynes v. County of Monroe, 278 A.D.2d 823, 824, 718 N.Y.S.2d 532).
“[A] condemnee may not receive an enhanced value for its property where the enhancement is due to the property's inclusion within a redevelopment plan” (Matter of Queens W. Dev. Corp., 289 A.D.2d 335, 336, 734 N.Y.S.2d 208;see Village of Port Chester [Bologna], 95 A.D.3d 895, 897, 943 N.Y.S.2d 575). Thus, for example, property zoned for industrial use “should be valued in accordance with the industrial zoning designation which would apply if the redevelopment plan did not exist,” for “[a] condemnee is only entitled to compensation for what it has lost, not for what the condemnor has gained” (Matter of Queens W. Dev. Corp., 289 A.D.2d at 336, 734 N.Y.S.2d 208).
Here, the Supreme Court properly accepted the conclusion of the condemnee's appraiser that the property's highest and best use was for multi-family residential development. The condemnee's appraiser sufficiently and credibly explained the basis for his selection of comparable properties and relevant adjustments made to the valuation of these properties. In contrast, the condemnor, the Village of Haverstraw, did not demonstrate that, absent the urban redevelopment plan, which encompassed the subject property, the property would have been suitable only for light industrial development ( see Gyrodyne Co. of Am., Inc. v. State of New York, 89 A.D.3d at 989, 933 N.Y.S.2d 375;cf. Matter of City of New York [Broadway Cary Corp.], 34 N.Y.2d 535, 536, 354 N.Y.S.2d 100, 309 N.E.2d 870;Broadway Assoc. v. State of New York, 18 A.D.3d at 688, 795 N.Y.S.2d 735). Contrary to the Village's contention, the court's decision does not indicate that it improperly incorporated the enhancement to the subject property's value which resulted from the village's urban redevelopment project ( see Matter of Village of Port Chester [Bologna], 95 A.D.3d at 897, 943 N.Y.S.2d 575;Matter of Queens W. Dev. Corp., 289 A.D.2d at 336, 734 N.Y.S.2d 208).
Although the Supreme Court made certain changes to the final results presented in the condemnee's appraisal, it adequately explained its reasons for making those changes. Thus, the court's determination was within the range of expert testimony and adequately supported by the record ( see Chester Indus. Park Assoc., L.P. v. State of New York, 103 A.D.3d at 828, 962 N.Y.S.2d 236;Gyrodyne Co. of Am., Inc. v. State of New York, 89 A.D.3d at 989, 933 N.Y.S.2d 375;Matter of Board of Commr. of Great Neck Park Dist. of Town of N. Hempstead v. Kings Point Hgts., LLC, 74 A.D.3d at 805–806, 903 N.Y.S.2d 451;Matter of Town of E. Hampton [Windmill II Affordable Hous. Project (9 Parcels) ], 44 A.D.3d 963, 964, 844 N.Y.S.2d 113;Rockland Dev. Assoc. v. State of New York, 15 A.D.3d 381, 381–382, 790 N.Y.S.2d 169).
Contrary to the condemnee's contention, the Supreme Court did not err in valuing the subject property on a per-acre basis rather than on the basis of how many units could be developed thereon ( see Matter of County of Suffolk [Firester], 37 N.Y.2d at 653, 376 N.Y.S.2d 458, 339 N.E.2d 154;Matter of Breitenstein v. State of New York, 245 A.D.2d at 839–840, 666 N.Y.S.2d 769).
The parties' remaining contentions need not be reached in light of our determination, or are without merit.