Posted by: Patricia Salkin | August 19, 2020

NY Appellate Court Holds Claimant Failed to Demonstrate that the Trial Court Erred in Determining the Value of the Appropriated Land in Takings Case

This post was authored by Matthew Loescher, Esq.

Claimant was the owner of an 8.6–acre parcel of property in the Town of Wallkill, located at 90 Crystal Run Road near the interchange of State Route 17 and Interstate 84. The property was improved with a four-story, Class A office building that had approximately 90,000 square feet of rental space. In 2011, the defendant, State of New York, appropriated 34,930 square feet, or 0.802 acres, of the property. Prior to the taking, the property had a landscaped, 50–foot buffer area between the parking lot in front of the building and the edge of Crystal Run Road. The State appropriated nearly all of the buffer area along the frontage of the property for the purpose of widening Crystal Run Road. In March 2012, the claimant’s predecessor commenced this claim in the Court of Claims. After a trial, the court issued a decision finding that the claimant was entitled to the principal sum of $232,000 for direct damages and lost site improvements as a result of the State’s partial taking.

In reaching its decision, the record reflected that the court did not disregard the comparable sales relied upon by the parties’ experts or adopt the comparable sales analyzed by the court in a prior case. As such, the claimant failed to demonstrate that the court erred in determining the value of the appropriated land. Despite the claimant’s assertion that it sustained more than $2.7 million in consequential damages, the court found that the claimant failed to meet its burden of proof “to establish indirect damages and to furnish a basis upon which a reasonable estimate of those damages can be made”. Specifically, the court determined that the claimant did not present evidence that the potential expansion was physically possible in light of the existing zoning requirements, or that it was economically feasible. Thus, the court upheld with the trial court’s determination declining to award consequential damages on that basis.

The court next found that the claimant did not present any evidence that the State’s appraiser violated the Uniform Standards of Professional Appraisal Practice by failing to maintain in his work file a prior draft appraisal report that was transmitted to the State. Furthermore, the claimant failed to present any evidence that the State’s appraiser created and intentionally destroyed prior drafts of the submitted appraisal report, which were relevant to the claimant’s claim. Accordingly, the court also upheld the trial court’s decision to decline to accord an adverse inference to the State’s appraiser’s testimony and appraisal report.

Lebov, LLC v State of New York, 2020 WL 4197130 (NYAD 2 Dept 7/22/2020)


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