Opinion
August 1, 1961
Appeal by petitioner City of New York from so much of an order of the Supreme Court at Special Term, entered in Sullivan County, as confirmed reports of the commissioners of appraisal with respect to separate awards for damages on account of the diversion of the Neversink River, made under title K of the Administrative Code of the City of New York (the Water Supply Act) (1) to respondent Snyder and (2) to respondent Board of Fire Commissioners of Woodbourne Fire District. Respondent Snyder was awarded $500 for damage to his bungalow colony business conducted upon his nonriparian parcel and $5,500 for the taking of a limited easement, which included beach and swimming privileges, in favor of these premises and applicable to a nonowned riparian parcel. We find, contrary to appellant's contention, that claimant's operation constituted a business within the meaning of the act (§ K41-44.0), similar to that for which awards have been affirmed in the past (see, e.g., Matter of Huie [ Klass], 11 A.D.2d 837) and that claim for damage thereto was timely as filed "within three years from the execution of the plan" (§ K41-18.0, subd. [b]). The claim for the taking of claimant's easement, however, was not filed "within three years after title thereto * * * vested in the city" (§ K41-18.0, subd. [a]). We agree that, as respondent contends, this Statute of Limitations may be waived (cf. Reilley v. City of New York, 273 App. Div. 1014, affd. 298 N.Y. 710), our dictum to the contrary in Matter of Huie ( McElligott) ( 7 A.D.2d 599), so far as inconsistent with Reilley being, of course, in error, but the record before us does not support the assertion that there was a waiver in this case. There is no procedural requirement under the Water Supply Act that the statute be pleaded or otherwise interposed prior to trial and, under the circumstances of this case at least, it cannot be said that the city's failure to object until claimant's proof was in constituted a waiver, as the relevance of the statute was not apparent until claimant produced proof of his easement, the claim itself seeming to assert damage only under section K41-44.0. Indeed, claimant's counsel in replying to the city's argument that his letter of transmittal referred to the claim as "under Section 44", said that he himself was not then aware of the easement. Respondent Fire District was awarded, under section K41-44.0, $5,000 for decrease in value of nonriparian land upon which its firehouse was located and $7,500 for the taking of its nonappurtenant easement of a 16-foot right of way to the river, to be used "only for public fire fighting purposes" and to revert to the grantor if no longer used for those purposes. Appellant questions only the amounts of the awards. The award for the decrease in value of the land not taken is greatly excessive. Although expert witnesses testified to great disparity in before and after market values, none suggested any sound basis supportive of the award ultimately made. When asked "why" the diversion so seriously affected the market value of property in a commercial area some distance from the river, claimant's experts replied in generalities both vague and unresponsive and even claimant's brief on this appeal fails to suggest an answer, stating merely that "The commissioners were well aware of the decrease in the market value of all properties along the street" due to the diversion of the river and the effects thereof. We fail to find any adequate proof or legal basis supportive of the award on account of the peculiar and extremely limited easement here in issue; and, again, claimant's brief suggests no specific basis and cites no authority, other than a business damage case of no relevancy. Order modified, on the law and the facts, (1) so as to deny confirmation of the award of $5,500 to claimant Snyder upon his claim for real estate damage, to delete the percentage allowance thereon and to dismiss said claim; and (2) so as to deny confirmation of the awards to claimant Board of Fire Commissioners, to delete the percentage allowance thereon and to remit the claims for further hearing; and as so modified, affirmed, with costs to claimant Snyder; and with costs to claimant Board of Fire Commissioners to abide the event. Settle order. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.