T. & D. Golf, Inc. v. State

32 A.D.2d 719, 304 N.Y.S.2d 454, 1969 N.Y. App. Div. LEXIS 3879
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 27, 1969
DocketClaim No. 44066
StatusPublished

This text of 32 A.D.2d 719 (T. & D. Golf, Inc. 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
T. & D. Golf, Inc. v. State, 32 A.D.2d 719, 304 N.Y.S.2d 454, 1969 N.Y. App. Div. LEXIS 3879 (N.Y. Ct. App. 1969).

Opinion

Staley, Jr., J.

Appeal and cross appeal from a judgment in favor of claimant, entered June 5, 1967, upon a decision of the Court of Claims. In February, 1964 the State appropriated five parcels of land for highway construction. Parcels 242 and 243 on map 109 consisted of .883 acre of the parking area used by the claimant in its operation of a golf course. Parcels 232, 248 and 264 on map 102 consisted of 1.76 acres along the southerly line of the golf course area. Title to parcels 242 and 243 was in the Hancock Golf and Country Club, Inc., and title to parcels 232, 248 and 264 was in the Town of Hancock. On November 3, 1959 the Town of Hancock leased its land to the Hancock Golf and County Club, Inc., and on the same day the corporation subleased the land to August Tacea for development into a golf course which sublease provided : it being the intention that the Club sublet to Tacea the entire premises which the Club is leasing from the Town of Hancock, together with all appurtenances thereto as described in the agreement from the Town of Hancock to the Club dated November 3> 1959.” Thereafter, the sublease was assigned to claimant. Neither the Town of Hancock nor the Hancock Golf and Country Club, Inc., has filed a claim by reason of the appropriation. On the trial the State contended and now contends that the agreement and lease between the Hancock Golf and Country Club, Inc., with August Tacea do not include the land owned in fee by the corporation from which parcels 242 and 243 were appropriated, but include only the land leased from the Town of Hancock. The court determined that it was intended by the agreement and lease to lease all the land owned by the corporation as well as the land under [720]*720lease from the Town of Hancock. Although the land leased by the town did not include the land ultimately used by claimant as the practice tee and parking area, title to which was in the Hancock Golf and Country Club, Inc., the only reasonable interpretation of the sublease assigned to claimant requires inclusion in that agreement of the area owned by the corporation for use by claimant in the operation of the golf course. The golf course itself and the clubhouse were constructed upon the land of the Town of Hancock. The practice tee and parking area were constructed upon the land owned by the Hancock Golf and Country Club, Inc., and no objection appears to have been made by the corporation to the use of its land for this purpose. It was essential to the enjoyment of the lease that the tenant of the Country Club have suitable access and parking facilities, and a suitable area for a practice tee. Since these lands were actually improved and put to these uses by the tenant without objection of the landlord and fee owner, we can only conclude that the lease was intended to include the land owned in fee by the Hancock Golf and Country Club, Inc. The State also contends that the award of 25% consequential damages to the remainder of the leasehold was grossly excessive and unwarranted; and that the award of $30,387.65 to the claimant was grossly excessive. The claimant’s appraisal expert, William Frevert, arrived at a before value for the fee interests of $175,000 and for the leasehold interest of $125,000 using the capitalization of income method assuming a gross income of $20,000 whereas the maximum gross income according to the testimony had never exceeded $12,000 in the three years the course had been operating. The court properly rejected this testimony on the ground that this estimated income was a matter of speculation and the expenses used by claimant’s appraiser were not realistic. Frevert’s testimony was wholly inadequate as to valuation, since it was predicated on an improper method of valuation, i.e., capitalization of speculative profits. This witness also testified that adequate parking was an absolute necessity; that 200 ears could be parked prior to the appropriation; that 40 cars would be the maximum after the appropriation; and that this reduction in parking area would cause consequential damages to the remainder of the leasehold in excess of 60%. Little weight can be given to this testimony since on cross-examination he admitted that he made no computation as to the number of cars which could be parked, either before or after the appropriation and, nowhere in his testimony is there found even an opinion as to what would constitute adequate parking for a nine-hole golf course. Sidney M. Marks, a professional engineer and land surveyor called as a witness for the claimant, testified that the original area available for parking was 1.615 acres; that .883 acre was taken by the appropriation and .096 acre would be needed for a driveway, resulting in a loss of 60.5% of the parking area; that adequate parking was vital to the operation of a golf course; that prior to the appropriation, about 180 cars could be parked and after about 40 to 50 cars could be parked. He also gave no testimony as to what would constitute adequate parking facilities. August M. Taeea, secretary-treasurer of the claimant corporation, testified that prior to the appropriation, the parking area was sufficient for 200 to 250 cars; that after the taking, he would have trouble parking 50 ears; that membership of the course had started at 50 and reached a high of 83; that on an average weekend during July and August there were 100 to 125 players on the course; that part of the remaining area was sloped and he could not park cars there. He also gave no testimony as to what would be deemed adequate parking facilities for a nine-hole golf course. Paul Kern, a professional golfer and a partner in a golf course in Broome County, testified on behalf of the claimant that the cost of constructing a golf hole on the subject [721]*721property was $15,000 to $20,000 per hole; that parking facilities are a necessary attribute to a golf course; that the parking area prior to the appropriation was adequate; that the taking from the parking area has adversely affected the property; and that the course itself was still as playable as prior to the appropriation. He also gave no opinion as to what would be considered an adequate parking area. The State’s appraiser, John Kanazawieh, testified to a before value of $115,300 and an after value of $111,770 and computed damages at $3,530. In arriving at his valuations he broke up the property into two parts by reason of the separate ownerships of the underlying fee titles. Using comparables he valued the land owned by the Town of Hancock at $300 per acre, and the land owned by the County Club at $2,000 per acre. To this he added $7,000 for the improvements of each green or hole for a total of $63,000, $11,100 for the depreciated value of the clubhouse, $2,500 for other improvements, and $200 for a septic field. He found no consequential damages to the remaining lands and considered only the parking area to be consequentially damaged. This determination was apparently based, at least in part, upon his opinion that a grassy area which could accommodate 110 cars was not used for parking purposes, and there remained a graveled parking lot which in his opinion could handle about 62 cars which he considered adequate. On cross-examination he admitted that curtailment of a parking lot could decrease the value of a clubhouse and golf course. He further admitted that a 50% loss of necessary parking would result in a 20 to 25% consequential damage to the total property. This estimate of damage was based on the assumption that it was necessary to have the total parking area before the'taking for the operation, of the golf course, and that the total parking area before the taking was being utilized as necessary for the club’s operation.

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Bluebook (online)
32 A.D.2d 719, 304 N.Y.S.2d 454, 1969 N.Y. App. Div. LEXIS 3879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/t-d-golf-inc-v-state-nyappdiv-1969.