KNAPP v. COUNTY OF LIVINGSTON (1999)

 Supreme Court properly awarded defendant an easement to use an existing drainage pipe over plaintiff's property despite defendant's inability to prove the precise location of the pipe.   Plaintiff alleges in her complaint that the pipe, installed in the early 1900s, runs from a catch basin in the roadway in front of plaintiff's property to Brown's Creek, approximately 1,000 feet to the north.   Further pinpointing the location of the pipe is not necessary for determining the extent of the easement awarded to defendant or the resulting burden on the use by plaintiff of her property.

 Because plaintiff failed to plead defendant's noncompliance with the State Environmental Quality Review Act (ECL art 8) (SEQRA) in connection with the inverse condemnation cause of action, the court properly denied plaintiff's application to set aside the verdict on that cause of action based upon noncompliance with SEQRA (see, Matter of Village of Saugerties v. Town of Saugerties, 201 A.D.2d 52, 54, 614 N.Y.S.2d 774).  The evidence supports the amount of damages awarded for the taking of the easement, and the court properly conditioned injunctive relief upon defendant's failure to pay that award (see, Buholtz v. Rochester Tel. Corp., 40 A.D.2d 283, 286, 339 N.Y.S.2d 775, appeal dismissed 33 N.Y.2d 939, 353 N.Y.S.2d 728, 309 N.E.2d 129).  The court did not abuse its discretion in denying that part of plaintiff's application for an additional allowance under EDPL 701 (see, Hakes v. State of New York, 81 N.Y.2d 392, 396-397, 599 N.Y.S.2d 498, 615 N.E.2d 982).  Because defendant did not deny the de facto taking and made a settlement offer, that part of plaintiff's application for incidental expenses under EDPL 702(C) was properly denied.   The court properly denied without prejudice to further application that part of plaintiff's application for incidental expenses under EDPL 702(B) (see, Ashe v. Mohawk Val. Nursing Home, 262 A.D.2d 960, 701 N.Y.S.2d 536 [decided herewith] ).

Judgment unanimously affirmed without costs.

MEMORANDUM: