Opinion
October 31, 1967
Appeal by the State from judgments of the Court of Claims awarding the claimant a total of $24,936.50 in damages as a result of the State's condemnation of its property. By separate appropriations on November 6, 1961 and July 6, 1962 the State took all but a minute portion of a 50-acre parcel owned by the claimant. The land purchased many years eariler was wooded and unimproved and used only as an outdoor laboratory but plans had been developed prior to the first taking for the construction of a new school on the site. After the first taking plans were re-established to locate the school on the remaining land but after the 1962 taking, of course, a new site had to be selected and in 1964 20 acres were purchased for this purpose for $42,000. The appraisers typically had widely divergent views as to the value of the property. Claimant's appraiser stated that the best and highest use was for school purposes and arrived at total damages for the two parcels taken of from $41,250 to $39,250 depending on his method of valuation. The State's appraiser stated that the land was unsuited for school purposes because of, among other reasons, adjacent sewage disposal facilities, and rather had a best and highest use for timbering purposes as a result of which he ascribed damages of only $3,375 for both parcels. The trial court after viewing the premises and finding the State's appraiser's assessment completely unrealistic determined that the highest and best use was indeed for school purposes but that the value was only $500 per acre which resulted in damages of $7,667.50 for the first taking and $17,269 for the second for a total of $24,936.50. The State brings the instant appeal from these determinations. Considering initially the State's objection to the trial court's consideration of the entire 50 acres as a school site on the grounds that claimant was limited by its bill of particulars in the action brought after the first taking which stated that after that taking the remaining land was no longer suitable for school construction and requested consequential damages for the remainder, it is sufficient to point out that the Court of Claims has the power to vacate, amend, correct or modify any process, claim or judgment in the furtherance of justice (Court of Claims Act, § 9, subd. 8), and thus could properly grant claimant's motion to amend the notice of claim and pleadings to conform to the proof. Moreover, even if claimant had been restricted to its first bill of particulars, the total of damages would probably have been roughly the same with just a different method of computation; direct and consequential damages for the first taking and a reduced amount of direct damages on the second taking. Similarly, we find no merit in the State's contention that it was error to value all 50 acres on the basis of school use. Concededly, only 19 acres of the original parcel were proposed to be developed and only 20 acres were secured to replace the taken acreage, but the criteria to be utilized is the value based on the most advantageous use and not the use actually made by the claimant ( St. Agnes Cemetery v. State of New York, 3 N.Y.2d 37, 41), and claimant's expert clearly valued all of the land as a potential school site. The State objects to the court's method of valuation. The trial court was faced with a difficult problem of evaluation. This in turn was compounded by the fact that the State's appraisal was utterly unrealistic and thus worthless and that the claimant's appraisal also proved of little use because on the first taking all he gave were conclusions with no explanation as to how they were arrived at ( Tilo Co. v. State of New York, 25 A.D.2d 795; Katz v. State of New York, 10 A D 2d 164, 166), and as to the second taking he did the same with respect to one alternate value and with the other sought to treat the parcel as a specialty which if appropriate at all, required an adjustment for the difference in total acreage between the 34 acre parcel taken in the second appropriation and the replacement purchase of only 20 acres which was not made ( Latham Holding Co. v. State of New York, 16 N.Y.2d 41, 45). Faced with no acceptable appraisals, the court could make an award only if the other evidence in the record so permitted ( Matter of City of New York [ A. W. Realty Corp.], 1 N.Y.2d 428, 433). The court first determined that the property was a specialty and then that replacement cost was the proper measure of damages. Accordingly, it took the $42,000 purchase price, reduced it first by the $18,000 difference in development costs testified to by claimant's appraiser and then by an allowance to reflect the facts that the new site was bought several years after both condemnation dates, that the new location was more suitable as a school site and that claimant would have had to purchase or condemn certain right-of-way dirt trails on the original property to properly develop it, and arrived at $500 per acre valuation figure which it applied to the acreage taken. Of course, the entire question of propriety of the approach taken by the trial court depends on the assumption that the property was a specialty and that replacement cost was a proper method of evaluation. Concededly, the land here involved was not a specialty in the sense that only the owner would have use for it (see Matter of City of New York [ Lincoln Sq. Slum Clearance Project], 15 A.D.2d 153, 172, affd. 12 N.Y.2d 1086, and 16 N.Y.2d 497), and replacement cost has been held inapplicable to vacant undeveloped land ( St. Agnes Cemetery v. State of New York, supra, p. 46; cf. Albany Country Club v. State of New York, 19 A.D.2d 199, affd. 13 N.Y.2d 1085), but we are unable in this unusual case to find any other method of valuation other than that utilized which would properly reflect the true loss to the claimant and thus meet the constitutional standard of "just compensation". Accordingly, on the peculiar facts of this case we concur in the trial court's method of valuation. Finally, the State objected to the use of the purchase price of the replacement parcel on the grounds that it was not included in claimant's notice of comparable sales. However, while such a defect normally renders the sale inadmissible (Court of Claims Act, § 16, subd. 1), on the circumstances of the instant case we do not find its admission to require reversal (CPLR 2002). Judgments affirmed, with costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Reynolds, J. [ 46 Misc.2d 1072.]