Eminent Domain Law

State Entitled to Consider Increase in Value of Retained Land

Lerner-Pavlik Realty v. State of New York

NYLJ 8/10/12, p. 26, col. 2

AppDiv, Second Dept.

(memorandum opinion).

In landowner's action to recover damages for a partial taking of real property, both the landowner and the state appealed from a Court of Claims judgment awarding landowner $148,000 in consequential damages. The Appellate Division reversed and remanded, holding that the Court of Claims had improperly failed to consider the state's claim that an increase in the value of landowner's remaining property more than offset any consequential damages landowner suffered.

The state appropriated 4.5 acres of landowner's 36.1 acres in order to build a highway that would improve access to Stewart Airport. Landowner brought this action to recover damages for the land taken. The parties stipulated that landowner was entitled to $230,500 in direct damages for the land taken in fee. The remaining issue was whether landowner suffered consequential or indirect damages as a result of the taking. The Court of Claims awarded $148,000 in consequential damages, an amount within the range of the testimony and appraisal reports prepared by the various experts. The Court of Claims, however, did not address the state's claim that construction of the new highway increased the value of landowner's remaining land, which had frontage on that new highway, increasing potential traffic and eliminating the need to build an access road.

The Appellate Division reversed, and held that the Court of Claims should have considered the benefits to landowner's property generated by the taking and the construction of the new roadway. The court held that those benefits could not be used to offset landowner's direct damages, but could be used to offset the amount of consequential damages. As a result, the court remanded for a consideration of those potential benefits.

State Entitled to Consider Increase in Value of Retained Land

Lerner-Pavlik Realty v. State of New York

NYLJ 8/10/12, p. 26, col. 2

AppDiv, Second Dept.

(memorandum opinion).

In landowner's action to recover damages for a partial taking of real property, both the landowner and the state appealed from a Court of Claims judgment awarding landowner $148,000 in consequential damages. The Appellate Division reversed and remanded, holding that the Court of Claims had improperly failed to consider the state's claim that an increase in the value of landowner's remaining property more than offset any consequential damages landowner suffered.

The state appropriated 4.5 acres of landowner's 36.1 acres in order to build a highway that would improve access to Stewart Airport. Landowner brought this action to recover damages for the land taken. The parties stipulated that landowner was entitled to $230,500 in direct damages for the land taken in fee. The remaining issue was whether landowner suffered consequential or indirect damages as a result of the taking. The Court of Claims awarded $148,000 in consequential damages, an amount within the range of the testimony and appraisal reports prepared by the various experts. The Court of Claims, however, did not address the state's claim that construction of the new highway increased the value of landowner's remaining land, which had frontage on that new highway, increasing potential traffic and eliminating the need to build an access road.

The Appellate Division reversed, and held that the Court of Claims should have considered the benefits to landowner's property generated by the taking and the construction of the new roadway. The court held that those benefits could not be used to offset landowner's direct damages, but could be used to offset the amount of consequential damages. As a result, the court remanded for a consideration of those potential benefits.