Mount Hope Cemetery Ass'n v. State

12 A.D.2d 705, 208 N.Y.S.2d 737, 1960 N.Y. App. Div. LEXIS 6248

Opinion

Motion by claimant to correct the decision of the court of August 2, 1960 (11 A D 2d 303) relating to the consequential damage to 20.537 acres of land denied. The opinion correctly reflected the view of the court that the consequential damage to the parcels of land not taken is $81,782. The percentage formula applied to damage for this land not taken was adopted to achieve consistency with the method of computation of damage followed by the Court of Claims and was applied to the discounted value of an acre before the taking. Claimant’s computations would increase the consequential damage for this land not taken to $210,850.40 or to almost 50% of the entire award. No such damage is demonstrated on any reasonable theory and the court refuses to find damage in such magnitude. Claimant’s computations on this motion essentially are based on the difference in profits which might have been realized on the land not taken, discounted for the same period as though there had been no taking of other land, We do not accept this theory as a reliable or reasonable evaluation of damage to this parcel. Cross motion by the State denied. Settle order to be entered on notice and in accordance with the procedure set forth in regulations affecting orders (Rules, 3d Dept.).