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Supreme Court, Appellate Division, Fourth Department, New York.

ERIE COUNTY INDUSTRIAL DEVELOPMENT AGENCY, Petitioner-Appellant, v. Joseph V. MUSZYNSKI and Irene Muszynski, Respondents-Respondents.

Decided: March 31, 1999

PRESENT:  HAYES, J.P., WISNER, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. James F. Allen, Allen Lippes & Shonn, Buffalo. Mark Ryan McNamara, Hiscock & Barclay, Buffalo, for petitioner-appellant. Colleen Mullaney-Westfall, of counsel, for respondents-respondents.

In 1951 respondents (hereinafter claimants) purchased approximately 7.38 acres of land on Seneca Creek Road in the Town of West Seneca.   The property is split-zoned.   The front portion of the property, consisting of .9 to 1.0 acre with 151.54 feet of road frontage, is zoned residential.   In 1957 claimants built a ranch-style residence on that portion of the property.   The rear portion of the property, consisting of 6.3 acres, is zoned industrial.

On May 15, 1992, petitioner, Erie County Industrial Development Agency (ECIDA), acquired through condemnation approximately 450 acres of property, including 6.48 acres of claimants' property, for the development of an industrial park.   The land appropriated consisted of all 6.3 acres of the industrial portion of claimants' property and .18 acre of the residential portion.

After the taking, ECIDA made an advance payment to claimants in the amount of $35,310.   Claimants then filed a claim seeking additional compensation pursuant to EDPL article 5. Supreme Court appointed a Referee to hear and report.   At trial, claimants' appraiser evaluated the residential and industrial portions of the property using comparables and concluded that the value of the condemned land was $202,500.   The appraiser for ECIDA concluded that the value of the condemned land was $21,100.   The Referee found flaws in the testimony of both appraisers and the comparables used by the appraisers, except for the nearby Thompson property.   The Referee found the Thompson property to be worth $7,047.21 per acre, and, using that value as a “yardstick”, determined that the value of claimants' property was $45,010.18.   The Referee properly relied as a comparable upon the recent sale of the Thompson property, a similar property on the same road that was also one of the parcels partially acquired in the condemnation proceeding (see, Erie County Indus. Dev. Agency v. Fry [appeal No. 1], 254 A.D.2d 721, 678 N.Y.S.2d 219;  Thompson v. Erie County Indus. Dev. Agency, 251 A.D.2d 1026, 674 N.Y.S.2d 193 ).   The Referee's determination is supported by the record.

Order unanimously affirmed with costs.