CHESTER INDUSTRIAL PARK ASSOCIATES v. STATE

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CHESTER INDUSTRIAL PARK ASSOCIATES, L.P., appellant, v. STATE of New York, respondent.

Decided: February 27, 2013

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ. Goldstein, Rikon & Rikon, P.C., New York, N.Y. (Michael Rikon of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Peter H. Schiff of counsel), for respondent.

In a claim arising from an eminent domain proceeding, the claimant appeals from so much of an amended judgment of the Court of Claims (Mignano, J.), dated October 20, 2011, as upon a decision of the same court dated July 27, 2011, made after a nonjury trial determined that the claimant was entitled to damages only in the amount of $250,316 for the partial appropriation of its property denominated as section 117, block 1, lot 1.1.

ORDERED that the amended judgment is affirmed insofar as appealed from, with costs.

The measure of damages in a case involving the partial taking of real property is the difference between the value of the entirety of the premises before the taking and the value of the remainder after the taking (see Diocese of Buffalo v. State of New York, 24 N.Y.2d 320, 323, 300 N.Y.S.2d 328, 248 N.E.2d 155; Gyrodyne Co. of Am., Inc. v. State of New York, 89 A.D.3d 988, 989, 933 N.Y.S.2d 375; Chester Indus. Park Assoc., LLP v. State of New York, 65 A.D.3d 513, 514, 884 N.Y.S.2d 243). The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, whether or not the property was actually being put to such use at that time (see Gyrodyne Co. of Am., Inc. v. State of New York, 89 A.D.3d at 989, 933 N.Y.S.2d 375; Chester Indus. Park Assoc., LLP v. State of New York, 65 A.D.3d at 514, 884 N.Y.S.2d 243).

Here, the trial court properly rejected the appraisal submitted by the claimant, since the additional evidence submitted by the claimant to support its appraisal did not establish that the property, which was subject to federal wetlands regulations, would not “be capable of producing a reasonable return or be adaptable to other suitable private use” (Spears v. Berle, 48 N.Y.2d 254, 263, 422 N.Y.S.2d 636, 397 N.E.2d 1304; see Chase Manhattan Bank v. State of New York, 103 A.D.2d 211, 219, 479 N.Y.S.2d 983). Having rejected the claimant's appraisal, the trial court was bound to either accept the State's appraisal or explain the basis for any departure (see Gyrodyne Co. of Am., Inc. v. State of New York, 89 A.D.3d at 989, 933 N.Y.S.2d 375; Zappavigna v. State of New York, 186 A.D.2d 557, 560, 588 N.Y.S.2d 585).

Here, the trial court properly accepted the State's appraisal. The State's appraiser sufficiently and credibly explained the basis for his selection of comparable properties and relevant adjustments made to the valuation of these properties (see Chase Manhattan Bank v. State of New York, 103 A.D.2d at 222, 479 N.Y.S.2d 983). Although the trial court made certain changes to the final results presented in the State's appraisal, it explained its basis for the changes. Thus, contrary to the claimant's contentions, the trial court's determination was within the range of expert testimony and adequately supported by the record (see Gyrodyne Co. of Am., Inc. v. State of New York, 89 A.D.3d at 989–990, 933 N.Y.S.2d 375; J.W. Mays, Inc. v. State of New York, 300 A.D.2d 545, 546–547, 754 N.Y.S.2d 287; Matter of City of Yonkers v. Celwyn Co., 221 A.D.2d 437, 438, 633 N.Y.S.2d 578).

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