Rodman v. State

109 A.D.2d 737, 485 N.Y.S.2d 842, 1985 N.Y. App. Div. LEXIS 47217

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1985
• Status: Published

Opinion

— In a condemnation proceeding, claimants appeal from a judgment of the Court of Claims (Lengyel, J.), dated August 9, 1983, which is in favor of the State and against them in the principal sum of $19,700, with interest, the amount by which advance payments made to them by the State exceeded the sum awarded to them as compensation for the taking.

Judgment affirmed, without costs or disbursements.

This case revolves essentially on resolution of complex facts involving the history of town zoning, planning and flood plain designations, maps underlying those histories, and a study of surrounding property usages. Claimants contended that at the time of the taking there was a reasonable probability of rezoning of 46,420 square feet (Economic Unit A) of its subject property from “PI” (Planned Industry) to “GB” (General Business) commercial zoning and that the trial court in its award should have accordingly given an enhancement in value to Economic Unit A for that alleged reasonable probability.

The burden of proving that probability rested upon claimants and the existence of such a reasonable probability is a question of fact (Rebrug Corp. v State of New York, 42 AD2d 801; Maloney v State of New York, 48 AD2d 755).

At bar, we find that although claimants presented a careful and thorough case, the evidence was closely,, cogently and correctly scrutinized and evaluated by the trial court and that claimants did not establish that there was a reasonable probability of the asserted change of zoning (Rebrug Corp. v State of New York, supra; Maloney v State of New York, supra). Accordingly, the judgment is affirmed. Thompson, J. P., Brown, Niehoff and Lawrence, JJ., concur.