Opinion
May 18, 1971
Appeal from a judgment, entered October 2, 1969, upon a decision of the Court of Claims which awarded claimants $15,000 as damages for the appropriation of a portion of their property in the Town of Lake George for highway purposes. On June 22, 1965 a strip of claimants' land containing 1,682 square feet, and varying in depth from 11 to 18 feet was appropriated by the State for the widening of Route 9. Prior to the appropriation, claimants' property consisted of a parcel of land in the Town of Lake George, Warren County, just south of the Village of Lake George, having a frontage on the west side of Route 9 of 120 feet and a depth of 160 feet. The strip appropriated extended along the entire frontage of claimants' property. The property was improved by a 10 unit motel and office with driveway, parking area, sign and suitable landscaping. The appropriation did not take the building, but did displace the lawn, shrubs, stone work, and two parking spaces in front of the office. The advertising sign was also removed, and a large elm was also destroyed. After the appropriation, the former lawn area in front of the motel became an embankment, and the driveway was increased in grade. Claimants' appraiser determined direct damages to be $7,223, and consequential damages to be $9,000. The State's appraiser determined direct damages to be $5,000 and made no allowance for consequential damages. This case was previously before this court at which time the case was remitted to the Court of Claims for the formulation of adequate findings setting forth the basis of the award. ( Howard v. State of New York, 35 A.D.2d 1032.) The supplemental decision made by the court determines the before value of the property to be $75,000 and the after value to be $60,000. Direct damages were determined to be $4,000 to land, and $2,800 to land improvements. Consequential damages were determined to be $7,500, of which $3,800 was assigned to land, $3,500 to buildings and $200 to land improvements, for total damages of $15,000. The State now contends that the total award is erroneous in view of the specific amounts awarded for the various items of damage, and that there is no basis in fact for an award of consequential damages. The award, as made by the court, is within the range of testimony and would be affirmed, except for the fact that it contains certain computational errors. The record fully supports an award of consequential damages and, although the State's appraiser allowed no consequential damages, a review of his appraisal reveals that he considered a functional depreciation of 5% "created by proximity of an access to No. 1 motel unit and office". Thus, there was a range of testimony as to consequential damages, and the court, having viewed the premises, could properly determine that a 10% depreciation was more applicable. The trial court's supplemental decision makes an award for direct damages of $7,500, but a total of specific amounts awarded for direct damages to land of $4,000, and to improvements of $2,800 only totals $6,800, and the direct damages must, therefore, be reduced by $700. In addition, the trial court's award for direct damages to land improvements must be reduced by $200 by reason of the court's erroneous award of $500 for stone work instead of $300 as testified to by claimants' appraiser, and the award for direct damages to land should be reduced to $3,825, the amount computed by multiplying the square footage taken by $2.25 per square foot adopted by the court. The modified total for direct damages amounts to $6,425, and total damages amounts to $13,925. Judgment modified, on the law and the facts, so as to reduce the award to $13,925 and interest, and, as so modified, affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.