McDonald v. State

Appellate Division of the Supreme Court of New York

McDonald v. State

26 A.D.2d 762, 271 N.Y.S.2d 924, 1966 N.Y. App. Div. LEXIS 3780

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

DecidedJuly 1, 1966

DocketClaim No. 40113

StatusPublished

This text of 26 A.D.2d 762 (McDonald 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.

Bluebook

McDonald v. State, 26 A.D.2d 762, 271 N.Y.S.2d 924, 1966 N.Y. App. Div. LEXIS 3780 (N.Y. Ct. App. 1966).

Pincite

Opinion

Judgment unanimously modified on the law and facts in accordance with the Memorandum and as modified affirmed, without costs of these appeals to either party. Memorandum : The proof fails to support the Court of Claims’ finding that the highest and best use of the subject premises was as a potential subdivision with a value of $2,500 per acre. There was no proof of the cost to bring into the land, an extremely rocky- terrain relatively barren of overburden or soil, public sewer and water, no evidence of the cost to excavate the rock for home construction and utility placement and no evidence of the cost to bring in fill as there was a dearth of it on site. The best evidence in the record indicative of the value of the subject premises based on comparable sales establishes a $700-an-aere-before-taking value for the 25.934 acres taken. Based on such value the award for direct damages should be reduced to $18,000. No award of consequential damages was made although the court found 46.3 acres to be landlocked without access. Upon a finding of 80% damage to such acreage as is claimed by claimants and conceded by the State, claimants are entitled to consequential damages in the amount of $26,000. As so determined judgment should be modified to a [763]*763total award of $44,000. (Appeal and cross appeal from judgment of Court of Claims for claimants on a claim for permanent appropriation of realty.) Present—'Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.

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Judgment unanimously modified on the law and facts in accordance with the Memorandum and as modified affirmed, without costs of these appeals to either party. Memorandum : The proof fails to support the Court of Claims’ finding that the highest and best use of the subject premises was as a potential subdivision with a value of $2,500 per acre. There was no proof of the cost to bring into the land, an extremely rocky- terrain relatively barren of overburden or soil, public sewer and water, no evidence of the cost to excavate the rock for home construction and utility placement and no evidence of the cost to bring in fill as there was a dearth of it on site. The best evidence in the record indicative of the value of the subject premises based on comparable sales establishes a $700-an-aere-before-taking value for the 25.934 acres taken. Based on such value the award for direct damages should be reduced to $18,000. No award of consequential damages was made although the court found 46.3 acres to be landlocked without access. Upon a finding of 80% damage to such acreage as is claimed by claimants and conceded by the State, claimants are entitled to consequential damages in the amount of $26,000. As so determined judgment should be modified to a [763]*763total award of $44,000. (Appeal and cross appeal from judgment of Court of Claims for claimants on a claim for permanent appropriation of realty.) Present—'Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.

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Bluebook (online)

26 A.D.2d 762, 271 N.Y.S.2d 924, 1966 N.Y. App. Div. LEXIS 3780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-state-nyappdiv-1966.