Marjal Realty Corporation
v.
State

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Third DepartmentMay 24, 1965
23 A.D.2d 941 (N.Y. App. Div. 1965)

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May 24, 1965


Appeal by the State from a judgment of the Court of Claims awarding respondent $36,200 plus interest for the appropriation of a parcel of land and three buildings located at 15 Road Street, Albany, pursuant to section 30 High. of the Highway Law. The State contends that the award was excessive in that it included twice the replacement cost less depreciation of certain retaining walls. But this argument, even if accepted, would only be germane if we were to assume that the Court of Claims erroneously based its award on the reproduction cost method which is not applicable here ( Matter of Semple School for Girls v. Boyland, 308 N.Y. 382, 389; Matter of City of New York [ Maxwell], 15 A.D.2d 153, 171-173). One of claimant's experts, however, also evaluated the property at $47,000 using the capitalization of income approach which would, of course, be appropriate here ( Matter of City of New York [ Maxwell], supra, p. 161). We do not find this evaluation erroneous because the actual rent rather than economic or comparable rent was utilized (4 Nichols, Eminent Domain [3d ed.], § 12.3122, p. 127) or because the actual rental was between two corporations controlled by common or related owners. The award is thus within the range of the testimony and we see no reason to disturb it. Judgment affirmed, with costs; and cross appeal on ground of inadequacy dismissed, without costs. Herlihy, J.P., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.