Opinion
June 13, 1967
Final decree unanimously modified, on the law and on the facts, by reducing the awards for Damage Parcels 1, 11, 9 and 20 as indicated below, and as so modified affirmed, with $50 costs and disbursements to the City of New York against the claimants-respondents-appellants. We agree with the finding of the Special Term that none of the sales submitted by both sides is comparable with the subject property. We note further the trial court's comment regarding the "gross disparity in the appraisals submitted by all of the experts in this case." We appreciate too the concession made by both the city and the claimants of the upward trend in values in the area after the date of title vesting and the circumstance that the trial, due to the city's delay, did not take place until three years after such vesting. Nevertheless, there can be no sanction of any unit land values higher than those found in any appraisal in the record. ( Matter of City of New York [ A. W. Realty Corp.], 1 N.Y.2d 428. ) The market to be found should have been sought as of the vesting date and the price the hypothetical buyer would pay must be related to the condition and situation of the property at the time it was taken ( Matter of City of New York [ West 10th St. Realty Corp.], 267 N.Y. 212), although the projected zoning change might be considered in the determination of value ( Masten v. State of New York, 11 A.D.2d 370, affd. 9 N.Y.2d 796). In this posture of the case the trial court should have considered other factors bearing upon valuation. The most cogent evidence of value was the recent sales of the condemned properties. ( Matter of City of New York [ 2460 Jerome Ave. Realty Corp.], 18 A.D.2d 991.) In the case of Damage Parcel 1 the claimant had paid $165,000 for this property 3 1/2 years or less before title vesting. The award for taking the major part of this vacant land was more than five times the purchase price and 460% of the assessed valuation. The award for Damage Parcel 11 (a three-story hotel on the property at the time of purchase had been demolished by the claimants) was 3.4 times the purchase price paid by the claimants 3 1/2 years previously, $82,500, and 4 1/2 times the assessed valuation. Concededly, as we have said, there was evidence of an increase in property value, but there was no evidence to sustain a finding that values had gone up 500%. The trend of increase may be gauged by the average of the percentage increase in the assessed values of all of the sales submitted from the dates of sale to the date of vesting. The record shows such increase to be approximately 250%. Accordingly, taking all of the evidence into consideration, the award for Damage Parcel 1 is reduced to the sum of $467,000. These same land value factors applied to the remaining contested parcels in the proceeding, giving due consideration to differences in location and topography, require a reduction of the award for Damage Parcel 11 to $232,750 and for Damage Parcels 9 and 20 to $171,000. We approve of the holding by the trial court that the buildings on Damage Parcel 9 used as a ice cubing, packing and distributing facility were not a specialty and we affirm the building and fixture awards for this latter parcel. Settle order on notice.
Concur — Steuer, J.P., Capozzoli, Tilzer, Rabin and McGivern, JJ.