Opinion
May 22, 1967
Appeal from a judgment of the Court of Claims awarding claimant $182,950, plus interest, for the direct taking of 171 acres and for consequential damages to 96 acres appropriated by the Palisades Interstate Park Commission pursuant to section 676-a of the Conservation Law. Involved is a 267-acre abandoned farm purchased eight months previous to the appropriation by the claimant for $75,000, ostensibly for subdivision as a residential development, from which the State has appropriated 171 acres. The Court of Claims, agreeing that the highest and best use before appropriation was potential residential development and that the highest use afterward was for the same, with reduced area and potential, found a before value of $202,150 and an after value of $19,200 for damages of $182,950, $134,950 of which were denominated direct damages and $48,000 as consequential damages. In reaching these determinations the Court of Claims valued a house on the portion taken at $11,000. This figure presumably accepts an evaluation of the house by one of the State's appraisers who arrived thereat solely on the basis of reproduction cost less depreciation. Such method of evaluation was clearly erroneous since there is absolutely no evidence which would indicate that the house was a specialty. Accordingly, there being no other basis on the instant record upon which to value the house a new trial is necessary ( Levine v. State of New York, 24 A.D.2d 524; Guthmuller v. State of New York, 23 A.D.2d 597). Furthermore, we point out several major errors presented by the present decision and record which should be resolved on retrial. First, if the Court of Claims determines, as was done here, that the best and highest use was for a potential subdivision site and that the method of valuation should be based upon giving the acreage value an increment value because of the potential use in accordance with Hewitt v. State of New York ( 18 A.D.2d 1128); see, also, Fort Amherst Realty Co. v. State of New York ( 27 A.D.2d 582), the found acreage value and found increment should both be set out so that this court can make a proper review of those determinations. Here all we are presented with is a final per acre valuation figure. Though it would appear to be within the range of the testimony, we have no basis for any evaluation of how it was arrived at (cf., Cuomo v. State of New York, 19 N.Y.2d 721). Secondly, claimant conceded that of the 96 remaining acres 33 had suffered no loss and the Court of Claims approved claimant's finding of fact to that effect and yet the Court of Claims based its award of consequential damages on the premise that all 96 acres suffered damages, which determination is supported by the testimony of the State's experts. Obviously, this inconsistency should be resolved, and it may well be that in doing so the Court of Claims' after value can be brought within the range of the testimony. Judgment reversed, on the law and the facts and in the interests of justice, without costs, and a new trial ordered. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.