City of Yonkers v. State

353 N.E.2d 829, 40 N.Y.2d 408, 386 N.Y.S.2d 865, 1976 N.Y. LEXIS 2899
New York Court of Appeals·Decided July 8, 1976·No. Claim 52716·Published·Cited by 21 cases

Opinions

Jones, J.

The question before us is whether on the record in this case an award of consequential damages for a partial taking of property which served as a public high school campus may be sustained.

Incident to the widening of Central Park Avenue through the City of Yonkers, on September 12, 1968 the State appropriated in fee and for permanent and temporary easements portions of property owned by the city and located on the northwest corner of the intersection of Central Park Avenue and Tuckahoe Road. Roosevelt High School, a public senior high school facility serving about 1,500 students and staffed by 90 faculty members, is located on the 500,000 square feet of property all of which is used for school purposes. The building, of classic architectural design, was constructed in 1925, enlarged in 1931 and 1961, and includes some 60 classrooms, together with a library, science laboratories, administration offices, girls’ and boys’ gymnasiums with locker facilities, and a kitchen-cafeteria. Prior to the appropriation the school stood back from Tuckahoe Road about 180 feet and was above the road level. Three driveways provided access to the school grounds, two of which approached the front of the building from Tuckahoe Road and connected with a circular driveway at the entrance. The grounds were enclosed by fencing and included paved faculty parking areas on the sides of the building and a combination football field and baseball diamond, a running track and tennis courts at the rear. With protective trees and shrubbery and situated on the knoll [410]*410above Tuckahoe Road removed from the noise and dust of passing traffic, the high school enjoyed a campus setting, peculiarly advantageous for an urban public education facility.

The land appropriated in fee by the State lay along the two sides of the school property that abutted on Central Park Avenue and Tuckahoe Road. The taking resulted in a 40-foot reduction of setback along Tuckahoe Road on which the high school fronted and in a lesser but significant reduction in sideline setback along Central Park Avenue. In addition to sums representing the value of the fee and of the permanent easements taken, the trial court awarded $43,000 as the cost-to-cure, $12,500 as the value of land improvements taken and $149,760 as consequential damages to the school building. The judgment has been affirmed at the Appellate Division.

On the appeal to our court the State challenges only the award of consequential damages and on two grounds: that it is in part duplicative of the portions of the award which represented cost-to-cure and the value of land improvements, and that it is based solely on an unsupported opinion by claimant’s appraiser witness which was not sufficient to sustain the award.

As to the first challenge: The State called as a witness a civil engineer who testified in detail as to what would be required by way of construction and grading to move, restore or replace certain land improvements which were affected by the taking—a parking lot, backstop, tennis courts, curbs, walks, fencing and evergreen screening. He estimated the cost of this restorative work at $43,000. This figure was adopted in turn by the State’s real estate appraiser who also estimated additional damages for land improvements directly taken at $12,500. This appraiser expressed the opinion that no consequential damages would be sustained by the building as a result of the taking. Claimant’s expert, however, testified that consequential damages would be suffered by the school by reason of the change in nature of the site in consequence of the appropriation, specifically, "that we have lost our quietude, tranquility and privacy, so provided and desired by a public high school facility, we have lost our distance from the roadway, Tuckahoe Road, and now, we don’t have an effective barrier to dust and fumes emanating from the heavily trafficked Tuckahoe Road. We have lost our campus-like setting.” He fixed the amount of such consequential damages at 3% of [411]*411the value of the building and improvements; by reason of the stated results of the appropriation "the subject building is 3 per cent less valuable for high school purposes than it was prior to the taking.” On cross-examination he stated that there were no cost-to-cure expenses included in his 3% appraisal. Although he recognized the loss of or need to move certain athletic facilities as a factor to be considered in fixing consequential damages, he included none of the facilities identified in the State’s engineer’s cost-of-cure figure in his 3% estimate. It is clear that there was no duplication in the trial court’s acceptance and award to claimant of the sum fixed by the State’s witnesses as the cost-of-cure and value of improvements directly taken—$43,000 plus $12,500—and its award of consequential damages to compensate for the loss sustained by the school building itself by virtue of the fee taking of land which lay between it and the public highways—$149,760, computed at 3% of the value of the high school building.

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City of Yonkers v. State, 353 N.E.2d 829, 40 N.Y.2d 408, 386 N.Y.S.2d 865, 1976 N.Y. LEXIS 2899 (N.Y. 1976).

353 N.E.2d 829 (City of Yonkers v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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