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FRANZ NICOLAY ET AL. v. STATE NEW YORK (06/11/69)

COURT OF CLAIMS OF NEW YORK Claim No. 48223 1969.NY.41966 <http://www.versuslaw.com>; 303 N.Y.S.2d 452; 60 Misc. 2d 612 June 11, 1969 FRANZ NICOLAY ET AL., CLAIMANTS,v.STATE OF NEW YORK, DEFENDANT Colaneri & Hudson (Rockwell D. Colaneri of counsel), for claimants. Louis J. Lefkowitz, Attorney-General (Jonh J. Reilly of counsel), for defendant. Caroline K. Simon, J. Author: Simon


Caroline K. Simon, J.

Author: Simon

 In the central portion of Suffolk County, Middle Country Road (Route 25) intersects William Floyd Parkway (Route 46) at a point adjacent to Brookhaven National Laboratory, the Parkway being the major north-south artery in that area. Pursuant to section 30 of the Highway Law, and as part of its program of improvement of New York State's highway system, the then Department of Public Works appropriated a portion of claimants' land in fee, and another portion by way of permanent easement for the purpose of widening Route 25 and providing access roads for a bridge over the Parkway.

The proceeding was described as Coram-Middle Island, East, S.H. No. 8291, Suffolk County, Map No. 250, Parcels No. 347 and 348, and Map No. 294, Parcel No. 399.

The parties have stipulated February 25, 1966 as the date of taking. The claim was timely filed with the Clerk of the Court of Claims and in the office of the Department of Law on June 1, 1967. It has neither been assigned nor tried, nor submitted to any other court or tribunal for audit or determination.

The court adopts the description of the appropriated property as shown on the maps and descriptions filed in the Suffolk County Clerk's office, copies of which are attached to the claim, and the same are incorporated herein by reference.

Claimants submit proof of ownership of the property by means of a bargain and sale deed dated April 11, 1956 from the Long Island State Bank & Trust Company, grantor, to Franz Nicolay and Margaret Nicolay, grantees, recorded in the Suffolk County Clerk's office on April 16, 1956 in Liber 4098 at pages 106 through 108.

Before the State's takings, the property consisted of an elongated triangularly shaped parcel of land fronting on Route 25 to the north for a distance of 74 feet, with a depth of 356 feet on the straight side of the triangle, 360 feet on the hypotenuse, and a width of 17.8 feet at its southerly tip, comprising 16,376 square feet in area. The land was level and was improved by a one-family, two-story dwelling with full basement, a well, cesspool, and driveway circling the house.

The area was zoned "J-2" Business for the first one hundred feet in depth, the balance was zoned "B" Residential, according to the Zoning Ordinance of the Town of Brookhaven. The house was used by claimants as their dwelling, and one main floor room and the basement were devoted to office and storage space for a business Mr. Nicolay conducted from the premises.

Parcel No. 347 of Map 250 consisted of a three-foot strip of land extending the entire 74 feet of frontage along the existing highway. This controlled access fee taking measured 220 square feet. Immediately adjacent to it, Parcel No. 348 of the same map consisted of an additional parcel of 6,520 square feet also taken in fee. It also extended the full 74 feet on the north, with a depth of 119 feet on the westerly side of the plot, curving along the southerly edge to a point 74 feet from the front line on the easterly side of the property. It measured 6,520 square feet in area. This latter taking included the portion containing the house and well.

Parcel No. 399 of Map 294 consisted of a permanent easement for slopes. It was a triangularly shaped plot adjacent to and extending from the southerly side of Parcel 348. It had a base of 16 feet and sides of 88 feet and 80 feet, and measured 370 square feet in area.

Claimants' appraiser was one of those expert witnesses who are competent in the field despite the fact that they have not attended courses in the subject of appraising, nor are they members of appraisal societies. The court nevertheless found this witness to be reliable in his ultimate appraisal figures and conclusions, though his presentation of the basis for these conclusions makes it difficult to use his testimony within the legal requirements for such proof.

Claimants' written appraisal assessed the direct damage as a result of the taking at $31,567.70, to which he added $6,500 as consequential damage, for a total of $38,067.70. On direct examination he particularized his direct damage by ascribing $11,100 to the value of the land, and $20,467.70 to the improvements. He stated that he reviewed claimants' bills for expenses incurred as a result of the State's taking, including business time lost and rentals of substituted office and home space, and estimated this total to be an additional $6,500. On cross-examination, this expert admitted that he had not considered any depreciation factor in his valuation, nor had he considered functional or economics obsolescense in the calculation. He stated that he had assessed the before-value of the property at $34,567.70. He deducted at salvage value $2,400 for the land (60 front feet at $40 a front foot) and $600 for the improvements.

On claimants' counsel's motion, five of the appraiser's comparable sales were withdrawn from his report for lack of comparability. This expert also stated that he had considered the subject property as being primarily zoned Residential "B" on the main road before the taking and on the service road after the taking, except for a small strip of "J-2" business land which remained after the taking.

Although the Assistant Attorney-General did not move to strike claimants' appraisal, he contended that it could be used only to check the State's value estimates, since it was based solely upon land value plus improvement cost, less depreciation. In support of this argument, Evans v. State of New York (31 A.D.2d 565) was cited. In that case claimants' expert treated a custom-built home as a specialty, which the court held was improper absent evidence of uniqueness. There claimants' written appraisal ...


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