Opinion
January 18, 1973
Appeal from the Court of Claims.
Present — Goldman, P.J., Witmer, Moule, Cardamone and Henry, JJ.
Judgment unanimously modified, on the law and facts, by reducing the award to $13,150 in accordance with the memorandum and, as modified, affirmed, without costs. Memorandum: Claimant leased premises at 317 Main Street, Buffalo, which it used as a wholesale-retail tobacco store and ticket sales office for sporting events. The rent was $5,400 per year for 847.5 square feet of first floor space measuring 15 feet by 56 1/2 feet and for the basement underneath. The court found that the basement area was worth half of the first floor space and that total space rented was equivalent to 1,271 square feet of first floor space. The term of the lease was for a five-year period from April 30, 1963 and had a three-year renewal provision. The State appropriated the building in which the leasehold was situated and claimant moved to 11 Court Street, a considerably better business location. Claimant's appraiser used the new lease as a comparable and, after considering clauses in the new lease that provided for an escalation in rent due to tax increases, that tenant was required to carry plate glass insurance and was responsible for all interior repairs and upkeep, and that landlord would supply heat, determined that an adjustment of $1.25 per square foot was appropriate. However, the court did not make adjustment for the factors that 11 Court Street location was in a new, modern building and that pedestrian traffic was heavier at the new location. We find that the new Mathias lease at 11 Court Street was the best comparable presented but that an additional adjustment of $.75 per square foot should have been made for the new building and heavier pedestrian traffic, for a total adjustment of $2 per square foot per year to be deducted from the new lease rental of $9 per square foot per year, resulting in a net comparable of $7 per square foot. Deduction of Mathias' former rental of $4.25 per square foot leaves a difference of $2.75 per square foot, resulting in monthly damages of $291.27. When multiplied by the Inwood coefficient of 45.140173 to reflect a 54.8 month remaining lease period discounted at 8%, the damages sustained by Mathias were $13,147.98, which we round off at $13,150.