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FLEETWOOD SYNAGOGUE v. STATE NEW YORK (04/14/69)

COURT OF CLAIMS OF NEW YORK 1969.NY.41107 <http://www.versuslaw.com>; 302 N.Y.S.2d 898; 60 Misc. 2d 326 April 14, 1969 FLEETWOOD SYNAGOGUE, INC., CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Matthew L. Salonger for claimant. Louis J. Lefkowitz, Attorney-General (Kent L. Mardon of counsel), for defendant. Milton Alpert, J. Author: Alpert


Milton Alpert, J.

Author: Alpert

 This is a claim for the appropriation of claimant's land pursuant to section 30 of the Highway Law, which proceeding is described as Cross County Parkway, Gramaton Avenue to North Columbus Avenue, Westchester County, Map No. 201-R-1, Parcels Nos. 201 and 257.

The aforesaid map and description were filed in the office of the Secretary of State on the 27th day of April, 1965 and in the office of the County Clerk of Westchester County on the 4th day of June, 1965.

The claim was filed with the Clerk of the Court of Claims and the Attorney-General on the 9th day of December, 1965 and has not been assigned or submitted to any other court or tribunal for audit or determination.

The court adopts the description of the appropriated property as shown on the map and description filed in the Westchester County Clerk's office, a copy of which is attached to the claim and same is incorporated herein by reference.

The claimant was the owner of the property by reason of two deeds, one dated June 12, 1957 from Congregation Brothers of Israel, grantor, to Fleetwood Synagogue, grantee, recorded in the Westchester County Clerk's office on the 21st day of June 1957, in Liber 5711 of Deeds, at page 44 and one dated March 30, 1961 from E. & N. Properties, Inc., grantor, to Fleetwood Synagogue, grantee, recorded in the Westchester County Clerk's office on the 3rd day of April, 1961, in Liber 6095 of Deeds at page 316.

The property was located in the City of Mount Vernon and fronted on the north side of Broad Street. The parcel was rectangular in shape, having 100 +- feet of frontage on the street, and was 143 +- feet deep. Prior to the appropriation, it contained 14,300 +- square feet. The property was quite level and at grade with the exception of the rear of the parcel where it sloped downward toward the Cross County Parkway which ran in an east-west direction about 30 +- feet below the grade of the property.

The parcel was improved with a one-story concrete block synagogue with a decorative brick veneer on the front. The interior of the synagogue had an entrance lobby, the sanctuary and a kitchen on the main or upper floor. The lower level of the building contained an assembly hall, two classrooms, two offices, a kitchen, two rest rooms, two boiler rooms and a meter room. The structure, 40 feet wide by 80 feet deep, was in good condition.

In addition, the parcel was improved with a lawn area, shrubbery, a driveway and a patio. All utilities were available to the site.

The court has viewed the property. The highest and best use of claimant's property before the appropriation was the purpose for which it was designed, a house of worship and religious school building for those who observe the Orthodox Jewish faith; and the highest and best use of claimant's property after the appropriation was the same provided appropriate modifications and installations are made to reduce the noise from the reconstructed highway to a level acceptable for a house of worship and a school.

The subject proceeding appropriated in fee approximately 0.02 +- acre or 1,000 +- square feet of claimant's property and comprised a strip across the entire rear of the property with a depth of 10 +- feet. The subject proceeding also appropriated, by means of a permanent easement, an additional strip adjacent to and abutting the fee appropriation for a retaining wall and fence. The easement strip also extended over the entire width of the parcel and was 21 +- feet in depth on the west and 29 +- feet deep on the east. It contained 0.053 +- acre of land or 2,300 +- square feet. No improvements were contained within the appropriated area with the exception of (1) an open frame booth or enclosure, called a Sukkah and used for religious purposes on the Sukkoth festival in the fall of each year and (2) 1,356 +- square feet of concrete patio. Also contained in the appropriated area were seven or eight trees which formed a screen to the rear of the synagogue.

Claimant's expert valued the land before the appropriation at $43,000 and the building and land improvements on a cost less depreciation basis with support from one sale at $90,500 for a total before value of $133,500. The State's expert valued the land before the appropriation at $10,000 but valued the building and land improvements on a cost less depreciation basis at $124,100 for a total before value of $134,100. There was, therefore, little difference in total value of the experts as to the before value of the synagogue building, improvements and land considered together.

The differences became apparent in their valuation of the property after the taking. Claimant's expert placed an after value on the property of $60,500 for a damage total of $73,700, of which $3,000 was for the direct taking, $700 for the easement (on a temporary basis) and $70,000 as consequential damage to the remaining property -- $50,000 to the building and $20,000 to the land. The State's expert believed there was an after value of $118,950, with $15,150 for damages. He attributed a value of $700 for the fee appropriation, $1,450 for the permanent easement, $1,000 for the improvements taken, and the balance -- $12,000 -- as consequential damage to the building and remaining improvements.

The State's appraiser in his appraisal and in his testimony justified his $12,000 severance damage to the buildings and improvements as loss of utility of the remainder, loss due to proximity of the right-of-way line to the building, and loss due to the permanent easement limiting expansion of the building toward the rear. In his testimony, he stated that the loss of the area in the rear as the result of the fee taking did have the effect of reducing the amount of additional building that could be put on the property by way of expansion. He specifically stated that he did not consider noise as an element in computing his after value and the resultant consequential damage to the building and remaining improvements.

The claimant's appraiser was of the opinion that the effects of the taking, including the noise, made the building no longer suitable for meditation and worship and that the congregation would be forced to find another location. In this connection, it is noted that he testified that, based on his before ...


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