Faulkner v. State

Appellate Division of the Supreme Court of New York

Faulkner v. State

247 A.D.2d 798, 669 N.Y.S.2d 435, 1998 N.Y. App. Div. LEXIS 1853

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 26, 1998

DocketClaim No. 83267

StatusPublished

Cited by1 cases

This text of 247 A.D.2d 798 (Faulkner v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Faulkner v. State, 247 A.D.2d 798, 669 N.Y.S.2d 435, 1998 N.Y. App. Div. LEXIS 1853 (N.Y. Ct. App. 1998).

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Opinions

Mercure, J.

Appeal from a judgment of the Court of Claims (McNamara, J.), entered August 9, 1996, upon a decision of the court in favor of claimant Robert E. Faulkner.

Claimant Robert E. Faulkner (hereinafter claimant) is the owner of a corner lot at the intersection of Albany-Shaker Road and Troy-Schenectady Road in the Town of Colonie, Albany County. At all relevant times, the property was leased to claimant Capitaland Rent-a-Car, Inc. (not a party to this appeal) and used in the operation of a car rental business. In December 1990, the State appropriated a 4,971-square-foot strip along the Troy-Schenectady Road boundary and a temporary easement encumbering an additional 3,142 square feet of claimant’s property. Claimants filed a claim for compensation in June 1991 and the matter came on for trial in December 1995. Ultimately, the Court of Claims rendered judgment awarding $73,900 for the permanent taking and $12,050 for the temporary easement, and claimant now appeals.

Initially, we reject the contention that the Court of Claims abused its discretion in receiving testimony and documentary evidence prepared by a State surveyor concerning the before-taking area of the property in the absence of a timely filing of the expert’s report or application for an extension of time pursuant to 22 NYCRR 206.21 (b), (c) and (g). Claimants’ filed appraisal, which indicated that the parcel was 22,018 square feet in area, was accompanied by a survey map of the parcel setting forth its perimeter courses and distances but failing to state the area encompassed. The State’s filed appraisal fixed the before-taking size of the parcel at 19,700 square feet and contained no survey or other supporting documentation on the issue of area.

[799]*799Thus, at the time of filing and exchange of the appraisals, claimants were on notice of a significant conflict in expert opinion concerning the actual before-taking size of the parcel and also of the fact that the State was not relying on a conflicting survey of the property. Nonetheless, claimants apparently took no steps to ensure the accuracy of its appraiser’s estimate of the size of the parcel or to determine the actual area of the parcel, as depicted on its own survey map. At trial, the State’s surveyor did not controvert the accuracy of claimants’ survey; he merely presented evidence as to his calculation of the area of the parcel, based upon the courses and distances set forth on claimants’ own survey.

Based upon the foregoing, we reject claimant’s contention that the proffered evidence fell within the ambit of 22 NYCRR 206.21 (b) (5) or (c). Although surveyors certainly qualify as experts when offering opinion evidence within the area of their particular expertise, in this case no opinion evidence was offered. Rather, the State’s surveyor did nothing more than make relatively simple mathematical calculations on the basis of data supplied by claimants. In addition, we agree with the State that claimants failed to preserve this issue for our consideration. Although raising an initial objection to the surveyor’s testimony, following voir dire, claimants’ counsel consented to the admission of the surveyor’s deed plot showing the parcel to contain 18,895 square feet of land.

Second, we perceive no valid basis for claimant’s contention that the Court of Claims erred in making its award. It must be remembered here that the computation and analysis of claimants’ appraiser was largely based on the erroneous assumption that the property conformed to the applicable lot size requirement (20,000 square feet) prior to the appropriation but was rendered nonconforming by the taking. The elimination of that predicate severely undercut the rationale underlying claimants’ appraisal with regard to both the before-taking value of the property and the issue of consequential damages. In that connection, claimants’ appraiser testified that the difference between his before-taking value of $11 per square foot and after-taking value of $8 per square foot was attributable to the fact that the appropriation rendered the parcel nonconforming.

It having been established at trial that the parcel actually failed to conform to the minimum lot size requirement before the appropriation, it can be reasonably inferred from the testimony of claimants’ appraiser that the $8 per square foot value applied in both cases. The Court of Claims made just that inference but, finding the State’s comparables to be worthy [800]*800of greater weight than claimants’ comparables, made an upward adjustment of $1 per square foot, fixing the value of the property, both before and after the taking, at $9 per square foot. Similarly, claimants’ appraiser acknowledged that if the parcel was nonconforming prior to the taking, most of his claimed consequential damages would not have been sustained, thereby providing an adequate basis for the Court of Claims’ finding in that regard.

Crew III, Yesawich Jr. and Peters, JJ., concur.

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Mercure, J.

Appeal from a judgment of the Court of Claims (McNamara, J.), entered August 9, 1996, upon a decision of the court in favor of claimant Robert E. Faulkner.

Claimant Robert E. Faulkner (hereinafter claimant) is the owner of a corner lot at the intersection of Albany-Shaker Road and Troy-Schenectady Road in the Town of Colonie, Albany County. At all relevant times, the property was leased to claimant Capitaland Rent-a-Car, Inc. (not a party to this appeal) and used in the operation of a car rental business. In December 1990, the State appropriated a 4,971-square-foot strip along the Troy-Schenectady Road boundary and a temporary easement encumbering an additional 3,142 square feet of claimant’s property. Claimants filed a claim for compensation in June 1991 and the matter came on for trial in December 1995. Ultimately, the Court of Claims rendered judgment awarding $73,900 for the permanent taking and $12,050 for the temporary easement, and claimant now appeals.

Initially, we reject the contention that the Court of Claims abused its discretion in receiving testimony and documentary evidence prepared by a State surveyor concerning the before-taking area of the property in the absence of a timely filing of the expert’s report or application for an extension of time pursuant to 22 NYCRR 206.21 (b), (c) and (g). Claimants’ filed appraisal, which indicated that the parcel was 22,018 square feet in area, was accompanied by a survey map of the parcel setting forth its perimeter courses and distances but failing to state the area encompassed. The State’s filed appraisal fixed the before-taking size of the parcel at 19,700 square feet and contained no survey or other supporting documentation on the issue of area.

[799]*799Thus, at the time of filing and exchange of the appraisals, claimants were on notice of a significant conflict in expert opinion concerning the actual before-taking size of the parcel and also of the fact that the State was not relying on a conflicting survey of the property. Nonetheless, claimants apparently took no steps to ensure the accuracy of its appraiser’s estimate of the size of the parcel or to determine the actual area of the parcel, as depicted on its own survey map. At trial, the State’s surveyor did not controvert the accuracy of claimants’ survey; he merely presented evidence as to his calculation of the area of the parcel, based upon the courses and distances set forth on claimants’ own survey.

Based upon the foregoing, we reject claimant’s contention that the proffered evidence fell within the ambit of 22 NYCRR 206.21 (b) (5) or (c). Although surveyors certainly qualify as experts when offering opinion evidence within the area of their particular expertise, in this case no opinion evidence was offered. Rather, the State’s surveyor did nothing more than make relatively simple mathematical calculations on the basis of data supplied by claimants. In addition, we agree with the State that claimants failed to preserve this issue for our consideration. Although raising an initial objection to the surveyor’s testimony, following voir dire, claimants’ counsel consented to the admission of the surveyor’s deed plot showing the parcel to contain 18,895 square feet of land.

Second, we perceive no valid basis for claimant’s contention that the Court of Claims erred in making its award. It must be remembered here that the computation and analysis of claimants’ appraiser was largely based on the erroneous assumption that the property conformed to the applicable lot size requirement (20,000 square feet) prior to the appropriation but was rendered nonconforming by the taking. The elimination of that predicate severely undercut the rationale underlying claimants’ appraisal with regard to both the before-taking value of the property and the issue of consequential damages. In that connection, claimants’ appraiser testified that the difference between his before-taking value of $11 per square foot and after-taking value of $8 per square foot was attributable to the fact that the appropriation rendered the parcel nonconforming.

It having been established at trial that the parcel actually failed to conform to the minimum lot size requirement before the appropriation, it can be reasonably inferred from the testimony of claimants’ appraiser that the $8 per square foot value applied in both cases. The Court of Claims made just that inference but, finding the State’s comparables to be worthy [800]*800of greater weight than claimants’ comparables, made an upward adjustment of $1 per square foot, fixing the value of the property, both before and after the taking, at $9 per square foot. Similarly, claimants’ appraiser acknowledged that if the parcel was nonconforming prior to the taking, most of his claimed consequential damages would not have been sustained, thereby providing an adequate basis for the Court of Claims’ finding in that regard.

Crew III, Yesawich Jr. and Peters, JJ., concur.

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247 A.D.2d 798, 669 N.Y.S.2d 435, 1998 N.Y. App. Div. LEXIS 1853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faulkner-v-state-nyappdiv-1998.

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