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ABRAHAM A. ROSEN ET AL. v. STATE NEW YORK (06/18/69)

COURT OF CLAIMS OF NEW YORK Claim No. 44112 1969.NY.42082 <http://www.versuslaw.com>; 301 N.Y.S.2d 353; 59 Misc. 2d 905 June 18, 1969 ABRAHAM A. ROSEN ET AL., CLAIMANTS,v.STATE OF NEW YORK, DEFENDANT Granik, Garson, Silverman & Nowicki (Joseph F. X. Nowicki of counsel), for claimants. Louis J. Lefkowitz, Attorney-General (Herbert N. Wallace of counsel), for defendant. James H. Glavin, J. Author: Glavin


James H. Glavin, J.

Author: Glavin

 This claim arises out of the appropriation of all but a small part of the claimants' land, pursuant to section 30 of the Highway Law. This appropriation is described as Echo Lake-Pines Bridge, S. H. 143, Westchester County, Map No. 15, Parcel No. 25.

The aforesaid map and description were filed in the office of the Secretary of State on July 17, 1963, in the office of the Clerk of Westchester County on July 30, 1964, and it appears personal service thereof together with the notice of appropriation was made on the claimants on July 26, 1963.

The claim was filed with the Clerk of the Court of Claims and served on the Attorney-General on July 27, 1964. By an order of this court, the claimants were granted permission to conform the filing date of their claim with the date of the filing of the Map in the Westchester County Clerk's office, namely, July 30, 1964. The claim 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 incorporated herein by reference.

The chain of title of the subject property into the claimants is as follows: On July 27, 1961 the property was purchased for a consideration of $50,000 by a deed of conveyance from Kipp-Luhmann, Inc., to Millwood Development Corp., recorded in the Westchester County Clerk's office in Liber 6129 of Deeds at page 266. On the same date as the aforesaid conveyance, Millwood Development Corp. transferred the subject property to Sydney Margolis (one of the claimants), Lawrence H. Furman and Joseph Saravis by deed of conveyance recorded in the Westchester County Clerk's office in Liber 6181 of Deeds at page 44. Claimants Rosen, Rosenberg and Margolis took title to the premises on March 22, 1962 by reason of a deed of conveyance from Messrs. Margolis, Furman and Saravis recorded April 13, 1962 in Liber 6195 at page 498 in the Westchester County Clerk's office.

The property which is the subject of the appropriation herein consists of about 14.75 acres measuring approximately 496.56 feet on the easterly side of Sawmill River Road (Route 100) and 642.27 feet on the south side of Mt. Kisco-Millwood Road (Route 133) with direct access to both of these highways. In addition, the land extended 323.90 +- feet on the westerly side of the Consolidated Edison Company right of way and 699.54 +- feet on the westerly side of the New York Central right of way. The southerly property line is adjacent to the lands of the Taconic State Park Commission for a distance of approximately 778.50 +- feet. The subject parcel was located approximately 25 yards north of the intersection of the Taconic State Parkway with Route 100, at the southeast corner of Routes 100 and 133.

At the time of the appropriation the subject property was vacant, unimproved land. It had previously been utilized for greenhouse and flower raising purposes but the structures used in connection with that business were demolished prior to the condemnation. At the time of the appropriation the subject property was zoned "B-1 (designed business zone)" which limited the use of the land to stores and shops for retail business, business and professional offices, restaurants and service establishments. The claimants' premises were in proximity to such population centers as Pleasantville, Chappaqua, Mt. Kisco, Katonah, Yorktown Heights, Ossining and Briarcliff. The subject property, located within the Hamlet of Millwood, in the Town of New Castle, Westchester County, was situated in an area of rapid population growth, of better-than-average income, larger than average families, and within a maximum of eight minutes' driving time it was estimated there were 67,000 people.

From the time the claimant, Sydney Margolis, acquired the property in July, 1961 until the time of the appropriation, extensive preparation was made to develop the site into a regional shopping center. Although the court did not give any evidentiary weight with respect to valuation on the agreements between the claimants pertaining to the property, the court did find that they substantiated the testimony given with respect to the extensive negotiations and plans made to develop the property. The testimony of Henry A. Porter whose job it was to obtain tenants for the proposed shopping center and approval of plans and specifications from the town authorities, and that of Irving S. Ribicoff, Esq., with regard to the negotiations for leases which culminated in two executed leases with the Chase-Manhattan Bank and the Giant Key Discount store, was unimpeachable. The Giant Key Discount store lease was executed September 20, 1962 for a 22-year base period with four five-year renewal options. The net rental was $75,024 per year for 60,000 square feet. It was a net lease wherein the tenant paid the upkeep, repairs, taxes and insurance. The Chase-Manhattan Bank lease was executed in April, 1963 for a base period of 15 years and a net rental of $14,000 per year for 3,500 square feet. To use shopping center parlance, these were "key" tenants. In addition, several other prospective tenants appeared ready to enter into binding agreements.

In connection with the Chase-Manhattan Bank lease, the testimony of John R. Phillips, branch bank developer for Chase-Manhattan Bank, was most impressive. He prepared a detailed report in order to obtain approval from the State Banking Department and the Federal Banking Board for the Millwood Branch. This report, together with preliminary plans prepared for construction of the bank was convincing because of the thoroughness with which the area was studied and the conclusions reached, namely, that a shopping center and branch bank would prosper in the location. In addition, the architectural firm of Ryder, Struppmann and Newmann prepared several plot plans and specifications for construction of the shopping center at the request of the claimants. Herbert C. Struppmann, architect, testified that the construction cost for the building alone would amount to $8 per square foot. The square footage of the building was estimated to be a minimum of 140,000 square feet. A Mr. Raymond Keyes, C.E., testified to site development costs of approximately $450,000 and affirmed the building costs of $8 per square foot.

Community sentiment in the Town of New Castle was strongly in favor of the development of the shopping center at Millwood. Favorable public support was reflected in a letter from the Town Supervisor to the Department of Public Works, protesting the relocation of the new highway through the proposed shopping center. The architects' plans had been submitted to and reviewed by the town authorities, although the appropriation intervened before final approval was obtained.

The claimants' valuation of the damages sustained was based not only on the unimproved land value as ascertained by comparable sales but included a 50% increment for the development potential of the property as a shopping center in view of the extensive plans, the executed leases and leases which were on the verge of execution had the appropriation not stymied negotiations. The claimants' proof based on the market approach was as follows:

Before Value

14.758 acres at $15,000 per acre $221,370.00

Development enhancement (50%) ...


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