SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 27, 1968
TILO COMPANY, INC., RESPONDENT,
STATE OF NEW YORK, APPELLANT
Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.
Appeal by the State from a judgment of the Court of Claims in a highway appropriation case entered March 17, 1968, which was previously remitted by us for a new trial (see 25 A.D.2d 795, in which the essential facts appear). The State now questions the award on the ground that claimant's expert testimony as to value based upon reproduction cost less depreciation is not appropriate. If this testimony were the sole basis for the award made, the State's objection would be well founded for the property was neither unique nor a specialty. (See Svoboda v. State of New York, 24 A.D.2d 915; Guthmuller v. State of New York, 23 A.D.2d 597.) However, it appears that the expert produced by the claimant testified to value by using the income approach, reproduction cost less depreciation and by using comparable sales; but that to arrive at his final estimate as to value, he used the comparable sales to "crystalize" his final opinion. The evidence presented a range of testimony which warranted the determination of the court in fixing the award herein.
Judgment affirmed, with costs.
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