Parisi v. State

62 Misc. 2d 378, 308 N.Y.S.2d 504, 1970 N.Y. Misc. LEXIS 1812
CourtNew York Court of Claims
DecidedMarch 11, 1970
DocketClaim No. 49624
StatusPublished
Cited by7 cases

This text of 62 Misc. 2d 378 (Parisi v. State) is published on Counsel Stack Legal Research, covering New York Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parisi v. State, 62 Misc. 2d 378, 308 N.Y.S.2d 504, 1970 N.Y. Misc. LEXIS 1812 (N.Y. Super. Ct. 1970).

Opinion

Milton Alpert, J.

This is a claim for the appropriation of claimants’ land pursuant to section 30 of the Highway Law, which proceeding is described as South Cairo-Cairo, S. H. No. 887, Greene County, Map No. 47, Parcel No. 54.

The aforesaid map and description were filed in the office of the County Clerk of Greene County on April 14, 1964 and personal service was made on the claimants on May 11,1964.

The claim was timely filed with the Clerk of the Court of Claims and the Attorney-General on May 21, 1968, pursuant to the provisions of a special enabling act of the Legislature as construed by an order of this court filed July 30, 1968 (L. 1968, ch. 29; Court of Claims Motion No. M-11009), and has not been assigned or submitted to any other court or tribunal for audit or determination.

[380]*380The court adopts the description of the appropriated property as shown on the map and description filed in the Greene County Clerk’s office, a copy of which is attached to the claim and same is incorporated herein by reference.

Claimants were the owners of the property by reason of a deed dated May 9, 1952 from Leo Bisazza and Rosina Bisazza, his wife, grantors, to Charles Parisi and Grace Parisi, his wife, grantees, recorded in the Greene County Clerk’s office on May 9, 1952, in Liber 327 of Deeds, at Page 581.

Before the appropriation, the property consisted of 0.650± acres, located on the north side of Boute 23 in the Town of Cairo in Greene County. The parcel was almost rectangular in shape and had 173± feet of highway frontage. On the west, it was 270± feet in depth; on the east, 205± feet in depth. The rear property line was 103± feet long. The property was at grade, was level and cleared.

Situate on the parcel were a 17-room dwelling and tourist home combination, 2 cottages and a shed. Two wells, a sewage disposal system, a crushed stone drive and parking area, and a shuffleboard court were among the land improvements contained on the parcel, as well as some trees, shrubbery and landscaping. Along the western boundary of the parcel was a stone wall. Claimants operated a boardinghouse for summer tourists on the premises and called their property “ Indian Lodge.”

The appropriation, taken for highway widening purposes, was in the form of a frontage strip the entire length of the highway frontage to a depth of 36± feet on the west and 21± feet on the east. The appropriated strip contained 4593± square feet or 0.15± acres. Located within the appropriated parcel were some of the crushed stone drive and parking area, the shuffleboard court, 1 of the 2 wells (the auxiliary well), a portion of the stone wall, some shrubbery, grassy area and trees, including a tree to which had been affixed a two-sided sign with lights.

The improvement reduced the setback of claimants’ main building from the State’s right of way. Bunning along the improvement are a new drainage ditch and guard rails. New entranceways were constructed for use by claimants.

Claimants’ expert assigned a before value to the property of $30,300, assigning $15,000 as the value of the residence, $7,000 and $2,000, respectively, as the values of the cottages, $1,200 for a storage building, $3,000 for the %± of an acre of land valued at $4,000 an acre, and $2,100 for land improvements as itemized in his appraisal (wells, sewage disposal system and shuffleboard court). He found an after value of $18,300 which resulted in damages of $12,000. The direct damage was $420 [381]*381for 0.105 ± acres at $4,000 an acre, $500 for the well and $150 for the shuffleboard court. His consequential damages in Ms written appraisal were $10,815 which he attributed to the adverse effects of the change of grade ($2,923) and to the adverse effects of the reduced setback and loss of parking area in front ($7,892)

The State’s expert found a before value of $16,000 of which $1,300 was for the land and $13,700 for the buildings and $1,000 for land improvements. His value after the appropriation was $15,000, of which $1,075 was for land and $13,225 for the buildings and $700 for the land improvements. His damages, therefore, were $1,000: — $225 for the land taken, $300 for the improvements contained thereon, and $475 as consequential damages.

After careful consideration of the testimony at the trial, the appraisals and exhibits in evidence, and the demeanor of the witnesses, the court finds as follows:

1. The highest and best use of the property prior to the appropriation was for a combination residential and commercial use similar to that to which the subject property was being put; namely, tourist accommodations. The highest and best use after the appropriation was the same, except as diminished by the appropriation.

2. With respect to land and building valuations and the use of comparable sales, the court found difficulty with the appraisal filed and submitted in evidence on behalf of the claimants in pursuance of the requirements of rule 25a of the Court of Claims (22 NYCRR 1200.27 [g]). The court finds therein a paucity of information and facts.

The purpose and intent of rule 25a of the Court of Claims is set forth in paragraph 7 of the rule. As stated therein, the rule was adopted 1 to compel a full and complete disclosure so as to enable all parties to more adequately and intelligently prepare for a trial of the issues.” This is in harmony with the requirement of the liberalized disclosure provisions set forth in the CPLR and should not come as a surprise to attorneys engaged in appropriation litigation (Valcour Bldrs. v. State of New York, 52 Misc 2d 760).

Appellate courts have held that where sales of other parcels are used as criteria in the evaluation of a subject property, such sales need to be adjusted to differences between one another and between each of them and the subject property (Matter of City of N. Y. [Shorefront High School Rudnick], 25 N Y 2d 146, 148, 149; Latham Holding Co. v. State of New York, 16 N Y 2d 41; Verni v. State of New York, 31 A D 2d 727). The adjustments applied to comparable sales and the data upon wMch such [382]*382adjustments are based constitute vital information upon which the appraisal money values are based and should be contained within the appraisal.

An expert may make adjustments when considering such sales, the degree of comparability then becoming a question of fact (Frieberger v. State of New York, 33 A D 2d 619; Kastelic v. State of New York, 29 A D 2d 803). An expert’s opinion has little probative value unless an explanation of all necessary adjustments of the comparable sales to the subject sale has been made (Wright v. State of New York, 33 A D 2d 616; see, also, Ridgeway Assoc. v. State of New York, 32 A D 2d 851; Svoboda v. State of New York, 28 A D 2d 1056). A sufficient and-, adequate explanation as to how the adjustments were made is required (Warren v. State of New York, 33 A D 2d 819). Explanations also must be based upon facts and not assumptions (see, Richards v. State of New York, 32 A D 2d 591).

After reviewing the above cases and rule 25a and its purpose and wording, the court concludes that under them the appraiser is expected to set forth his explanations and adjustments i/n ivriting in his appraisal.

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Cite This Page — Counsel Stack

Bluebook (online)
62 Misc. 2d 378, 308 N.Y.S.2d 504, 1970 N.Y. Misc. LEXIS 1812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parisi-v-state-nyclaimsct-1970.