Tremarco Corp. v. State

Appellate Division of the Supreme Court of New York

Tremarco Corp. v. State

30 A.D.2d 1019, 294 N.Y.S.2d 241, 1968 N.Y. App. Div. LEXIS 3045

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

DecidedOctober 30, 1968

DocketClaim No. 46583

StatusPublished

Cited by1 cases

This text of 30 A.D.2d 1019 (Tremarco Corp. 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

Tremarco Corp. v. State, 30 A.D.2d 1019, 294 N.Y.S.2d 241, 1968 N.Y. App. Div. LEXIS 3045 (N.Y. Ct. App. 1968).

Pincite

Opinion

Reynolds, J.

Appeal and cross appeal from a judgment of the Court of Claims awarding claimant $33,000, and interest, for the appropriation of approximately .192 acre of land in the Town of Colonie, Albany County. The improvement values testified to by the claimants’ expert being based on the erroneous use of reproduction cost less depreciation could not, standing alone, properly be considered by the trial court. Accordingly, since the court’s before value of the improvement exceeds the testimony by the State’s expert, it is clearly outside the range and must he supported by other evidence (Matter of City of New York [A. & W. Realty Corp.], 1 N Y 2d 428) and sufficiently explained by the court (e.g., Spyros v. State of New York, 25 A D 2d 696). Here there is clearly in the record sufficient evidence concerning valuing the improvement by capitalization of income to support the court’s decision. Moreover, while we could expect that more of an explanation of the rationale utilized might be provided us than the trial court has done here, it is, in our opinion, sufficiently evident that the court did, in fact, arrive at its decision by considering capitalization of income. Similarly, the after value of the land found by the trial court is outside the range of the testimony, but here it is absolutely clear that the figure chosen was arrived at by taking the State’s appraiser's valuation and excluding therefrom any benefit allegedly conferred on the land by the taking. While we cannot agree with the trial court’s statement that no benefit could accrue due to increased access and flowage because, conversely, loss of access would be damnum absque injuria (see Vanech v. State of New York, 50 Misc 2d 259, 265, affd. 29 A D 2d 607), we see no reason to disturb its factual determination that no benefit actually accrued. Nor does any other argument advanced warrant that the trial court’s decision be disturbed and, accordingly, it should be affirmed. Judgment affirmed, with costs to respondents-appellants. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Reynolds, J.

Free access — add to your briefcase to read the full text and ask questions with AI

Reynolds, J.

Appeal and cross appeal from a judgment of the Court of Claims awarding claimant $33,000, and interest, for the appropriation of approximately .192 acre of land in the Town of Colonie, Albany County. The improvement values testified to by the claimants’ expert being based on the erroneous use of reproduction cost less depreciation could not, standing alone, properly be considered by the trial court. Accordingly, since the court’s before value of the improvement exceeds the testimony by the State’s expert, it is clearly outside the range and must he supported by other evidence (Matter of City of New York [A. & W. Realty Corp.], 1 N Y 2d 428) and sufficiently explained by the court (e.g., Spyros v. State of New York, 25 A D 2d 696). Here there is clearly in the record sufficient evidence concerning valuing the improvement by capitalization of income to support the court’s decision. Moreover, while we could expect that more of an explanation of the rationale utilized might be provided us than the trial court has done here, it is, in our opinion, sufficiently evident that the court did, in fact, arrive at its decision by considering capitalization of income. Similarly, the after value of the land found by the trial court is outside the range of the testimony, but here it is absolutely clear that the figure chosen was arrived at by taking the State’s appraiser's valuation and excluding therefrom any benefit allegedly conferred on the land by the taking. While we cannot agree with the trial court’s statement that no benefit could accrue due to increased access and flowage because, conversely, loss of access would be damnum absque injuria (see Vanech v. State of New York, 50 Misc 2d 259, 265, affd. 29 A D 2d 607), we see no reason to disturb its factual determination that no benefit actually accrued. Nor does any other argument advanced warrant that the trial court’s decision be disturbed and, accordingly, it should be affirmed. Judgment affirmed, with costs to respondents-appellants. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Reynolds, J.

Cite This Page — Counsel Stack

Bluebook (online)

30 A.D.2d 1019, 294 N.Y.S.2d 241, 1968 N.Y. App. Div. LEXIS 3045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tremarco-corp-v-state-nyappdiv-1968.

Opinion

Related

Cite This Page — Counsel Stack