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

J.W. MAYS, Inc., Respondent, v. STATE of New York, Appellant.

Decided: December 23, 2002

FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER and ROBERT W. SCHMIDT, JJ. Eliot Spitzer, Attorney-General, Albany, N.Y. (Peter H. Schiff and Victor Paladino of counsel), for appellant. Sweeney, Cohn, Stahl & Vaccaro, White Plains, N.Y. (Julius W. Cohn and Carl Stahl of counsel), and LeBoeuf, Lamb, Greene & MacCrae, LLP, New York, N.Y. (Michael Lesch of counsel), for respondent.

In a claim to recover damages for a partial taking of certain commercial real property, the defendant appeals from (1) a decision of the Court of Claims (O'Rourke, J.), dated January 31, 2001, (2) a judgment of the same court, dated April 30, 2001, which is in favor of the claimant and against it in the principal sum of $4,147,572, and (3) an “additional judgment” of the same court, dated October 5, 2001, which is in favor of the claimant and against it in the principal sum of $1,366,562.74 for counsel, appraisers', and engineers' fees.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the judgment is modified by reducing the sum of $4,147,572 to the sum of $81,677;  as so modified, the judgment is affirmed, and the matter is remitted to the Court of Claims for entry of an appropriate amended judgment;  and it is further,

ORDERED that the “additional judgment” is reversed, and the awards of counsel, appraisers', and engineers' fees are vacated;  and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The claimant purported to establish through expert testimony that it could probably have qualified for a curb cut from its property onto Route 9 before the State condemned several feet of its frontage in May 1997, but that it probably would not have qualified for such a permit after the taking.   The claimant estimated its consequential damages to be the difference between the value of its property with a curb cut and the value of its property without access to the highway.

It is not disputed that the claimant never applied for a permit to build a driveway onto Route 9 prior to the taking because it had access to that thoroughfare through three contractual easements across an adjoining parcel.   Those easements are scheduled to remain in effect until October 2014.

The testimony of the claimant's transportation engineer was entirely speculative.   In attempting to prove that a pre-taking permit would have been granted, the engineer submitted a general design in which the entire highway abutting the claimant's property was reconfigured.   The engineer conceded that his design ignored numerous regulations of the New York State Department of Transportation (hereinafter the DOT) governing commercial driveways (see 17 NYCRR 125.6 et seq.), and was insufficiently specific to qualify as a permit application.   Accordingly, his hypothetical design did not establish any likelihood that the State would have implemented the desired highway reconstruction (see Fodera Enters. v. State of New York, 275 A.D.2d 85, 714 N.Y.S.2d 113).

The claimant additionally presented no proof of what such a rearrangement of a public intersection would cost (see Fodera Enters. v. State of New York, supra).   The claimant submitted no empirical evidence that highway alterations of the type and magnitude proposed by the engineer ever had been approved by State authorities (see e.g. Swiderski v. State of New York, 105 A.D.2d 1081, 482 N.Y.S.2d 581;  Weingarten v. State of New York, 60 A.D.2d 671, 399 N.Y.S.2d 950;  Lem v. State of New York, 45 A.D.2d 805, 806, 357 N.Y.S.2d 185;  cf.  Spriggs v. State of New York, 54 A.D.2d 1080, 388 N.Y.S.2d 749;  Masten v. State of New York, 11 A.D.2d 370, 371, 206 N.Y.S.2d 672, affd. 9 N.Y.2d 796, 215 N.Y.S.2d 508, 175 N.E.2d 166).   Because of these evidentiary deficiencies, the claimant failed to carry its burden to furnish a basis from which a reasonable estimate of its purported consequential damages could be made (see Niagara Mohawk Power Corp. v. Olin, 138 A.D.2d 940, 526 N.Y.S.2d 278;  Mil-Pine Plaza v. State of New York, 72 A.D.2d 460, 464, 424 N.Y.S.2d 937;  Maloney v. State of New York, 48 A.D.2d 755, 368 N.Y.S.2d 338;  Rebrug Corp. v. State of New York, 42 A.D.2d 801, 346 N.Y.S.2d 452).

Equally speculative was the engineer's testimony that a permit probably would be denied post-taking.   The engineer admitted that the claimant's parcel would not seriously be threatened with landlock until its easements expired in 2014.   Accordingly, his prediction of the DOT's future denial of a curb-cut application is premised on a possible ruling by that agency 12 years hence.   The courts have held that a claimant may not prove the existence of a “reasonable probability” by relying upon an expert's prognostication of future legislative action (see e.g. Maloney v. State of New York, supra at 756, 368 N.Y.S.2d 338).   At a minimum, the claimant's assertion of damage is premature (see City of Buffalo v. Clement Co., 28 N.Y.2d 241, 253, 321 N.Y.S.2d 345, 269 N.E.2d 895;  Priestly v. State of New York, 23 N.Y.2d 152, 295 N.Y.S.2d 659, 242 N.E.2d 827;  Bartle v. State of New York, 51 A.D.2d 1080, 381 N.Y.S.2d 144).

Since, at the date of taking, the claimant had essentially the same property with the same access that it had before-i.e., a parcel with three easements and direct frontage on Route 9 for which a permit to build a driveway was required-the claimant is not currently entitled to any consequential damages (see Klein v. State of New York, 187 A.D.2d 706, 707, 590 N.Y.S.2d 526).   The award to the claimant is accordingly reduced to $81,677 in direct damages, representing the uncontested value of the 0.078-acre parcel actually appropriated by the State.

Finally, because the $4,000,000 consequential damage award cannot be sustained, the awards of counsel, appraisers', and experts' fees must be vacated (see Hakes v. State of New York, 81 N.Y.2d 392, 599 N.Y.S.2d 498, 615 N.E.2d 982;  Matter of Estate of Haynes v. County of Monroe, 278 A.D.2d 823, 718 N.Y.S.2d 532;  EDPL 701).

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