Opinion
1114 CA 21-00560
01-28-2022
WEST GATES CIP, LLC, Claimant-Appellant, v. STATE of New York, Defendant-Respondent. (Claim No. 130902.)
BIERSDORF & ASSOCIATES, P.A., NEW YORK CITY (RYAN R. SIMATIC OF COUNSEL), FOR CLAIMANT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
BIERSDORF & ASSOCIATES, P.A., NEW YORK CITY (RYAN R. SIMATIC OF COUNSEL), FOR CLAIMANT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Claimant commenced this action seeking direct and indirect damages for defendant's appropriation by condemnation of a portion of claimant's commercial property. Following a trial, the Court of Claims awarded claimant $109,800, plus interest, with no award for indirect damages. We affirm.
Contrary to claimant's contention, the court correctly applied claimant's burden of proof and determined that claimant failed to satisfy its burden of establishing indirect damages. Where, as here, a claimant contends that the highest and best use of the property is something other than its current or existing use, it must be shown "that there is a reasonable probability that its asserted use could or would have been made within the reasonably near future" ( 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 [1974], rearg denied 34 N.Y.2d 916, 359 N.Y.S.2d 1028, 316 N.E.2d 723 [1974] ; see Tehan's Catalog Showrooms, Inc. v. State of New York [appeal No. 2], 118 A.D.3d 1497, 1498, 988 N.Y.S.2d 823 [4th Dept. 2014], lv denied 24 N.Y.3d 913, 2015 WL 97335 [2015] ; Kupiec v. State of New York , 45 A.D.3d 1416, 1417, 845 N.Y.S.2d 208 [4th Dept. 2007] ). It is claimant's burden to make that showing (see DiGiacomo v. State of New York , 182 A.D.3d 977, 979, 122 N.Y.S.3d 807 [3d Dept. 2020] ; Rodman v. State of New York , 109 A.D.2d 737, 737, 485 N.Y.S.2d 842 [2d Dept. 1985] ) by a preponderance of the evidence (see Sixth Ave. R.R. Co. v. Metropolitan El. Ry. Co. , 138 N.Y. 548, 553, 34 N.E. 400 [1893] ). The claimant must establish that the use is economically, legally, and physically feasible as well as maximally profitable (see DiGiacomo , 182 A.D.3d at 979, 122 N.Y.S.3d 807 ; Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.] , 20 A.D.3d 168, 170, 796 N.Y.S.2d 503 [4th Dept. 2005] ). A speculative or hypothetical use is insufficient (see Broadway Cary Corp. , 34 N.Y.2d at 536, 354 N.Y.S.2d 100, 309 N.E.2d 870 ; Matter of Village of Haverstraw [AAA Electricians, Inc.] , 114 A.D.3d 955, 956, 981 N.Y.S.2d 436 [2d Dept. 2014], lv denied 24 N.Y.3d 906, 2014 WL 4693345 [2014] ; City of Syracuse Indus. Dev. Agency [Alterm, Inc.] , 20 A.D.3d at 170-171, 796 N.Y.S.2d 503 ).
Here, claimant failed to meet its burden of establishing that the highest and best use of the condemned property was for the construction of an "end cap" unit adjacent to a supermarket. Claimant submitted no proof that construction of an end cap was a reasonable probability within the reasonably near future (see Broadway Cary Corp. , 34 N.Y.2d at 536, 354 N.Y.S.2d 100, 309 N.E.2d 870 ). Indeed, among other things, claimant failed to establish that construction was physically or legally feasible inasmuch as it would require moving a sewer line, and claimant made no showing that municipal approval for that move was reasonably probable (see Matter of City of New York [Rudnick] , 25 N.Y.2d 146, 149-150, 303 N.Y.S.2d 47, 250 N.E.2d 333 [1969] ; Rodman , 109 A.D.2d at 737-738, 485 N.Y.S.2d 842 ) or that moving the line was financially feasible (see Broadway Assoc. v. State of New York , 18 A.D.3d 687, 688, 795 N.Y.S.2d 735 [2d Dept. 2005], lv denied 5 N.Y.3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733 [2005] ). Thus, we decline to disturb the court's award, which was based upon the expert evidence offered by defendant, i.e., the party prevailing on the use question, without adjustments (see Matter of City of New York [Eman Realty Corp.] , 197 A.D.3d 705, 708, 152 N.Y.S.3d 734 [2d Dept. 2021] ; Crosby v. State of New York , 54 A.D.2d 1064, 1065, 388 N.Y.S.2d 768 [4th Dept. 1976] ).
We have reviewed claimant's remaining contentions and conclude that they are without merit.