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MATTER COUNTY NASSAU (08/20/68)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1968.NY.42794 <http://www.versuslaw.com>; 292 N.Y.S.2d 954; 57 Misc. 2d 488 August 20, 1968 IN THE MATTER OF THE COUNTY OF NASSAU, RELATIVE TO ACQUIRING TITLE TO REAL PROPERTY FOR THE ALTERATION OF ALIGNMENT OF OLD COUNTRY ROAD FROM WANTAGH STATE PARKWAY EASTERLY TO THE LONG ISLAND RAIL ROAD (MAIN LINE) IN THE TOWNS OF OYSTER BAY AND NORTH HEMPSTEAD Gehrig, Ritter & Coffey (Charles R. Ritter of counsel), for claimant. Morris H. Schneider, County Attorney (Michael R. Martone of counsel), for County of Nassau. Howard T. Hogan, J. Author: Hogan


Howard T. Hogan, J.

Author: Hogan

 In this taking, of a portion of a gasoline service station site, the county has acquired a strip of land with 150 +- feet fronting on Old Country Road to a depth of 11.2 to 11.6 feet. The strip was part of a larger parcel of land which contained 23,293 square feet and which was utilized as a gasoline filling station in conformity with the requirements of the Town of Oyster Bay. According to the vesting map, the area taken in fee was 1,686 square feet, which measurement the court adopts.

In addition the county utilized a working easement of 1,501 square feet which the parties have stipulated was required for a period of 15 months, and that the rate of return thereon should be 6% per annum.

The parties have also stipulated that the value of the improvements actually acquired was $2,342, and that the owner at the time of vesting was Old Country Realty Corporation.

The expert for the claimant approached the problem of valuation through three approaches: cost, economic and market value. He calculated a before value of $270,000 and an after value of $186,278. After adjusting for the stipulated value of the fixtures, he calculated a damage of $51,119 of which $17,000 was direct damage at $10 per square foot and $32,872 representing a diminution of $1.50 per square foot for the remaining 21,915 square feet. He included the working easement at $1,147. The petitioner's expert utilized one comparable sale to establish a land value of $5.50 per square foot in finding a before value of $158,111.50 and an after value of $144,839.50. He utilized a $30,000 building value in both instances and, after adjusting for the stipulated improvements taken, found direct damage $9,273, severance $2,000, improvements $2,342 and an adjusted working easement value of $560 for a total of $14,180.

At the time of the taking a lease was in existence on the subject premises in which the rent reserved was $700 per month plus 1 1/2 cents per gallon for each gallon over 50,000 gallons per month to a maximum of $100 per month. The basic rental, both before and after the taking was $8,400 per year plus the maximum average of $1,200 for a total maximum rent of $9,600 per annum until October of 1976, the expiration of the lease.

Part of the claimant's proof was the gallonage total pumped at this station through the years 1960 through 1967. These indicate the following yearly totals:

1960 1,294,886

1961 1,339,250

1962 1,130,316

1963 1,194,366

1964 1,327,858

1965 1,227,963

1966 829, 728

1967 825,218

The obvious decline in the gallonage of this station subsequent to the vesting is an indication that the parcel was substantially hindered as a result of the taking. While there may be other factors which would contribute to this continuing reduction it ...


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