Opinion
October 26, 1970
Appeal from a judgment of the Court of Claims, entered June 10, 1969, awarding claimant $1,068,199, plus interest, for the taking of 16.67 acres of land and a permanent easement for highway purposes in Westchester County. Respondent corporation was the owner in fee of a 52.6 acre parcel of land in the Town of Harrison, along Westchester Avenue, a public highway and service road for the Cross-Westchester Expressway. The property, zoned "Special Business", was improved by a three-story campus-type office building, a utility building and parking area for approximately 1,100 cars. Appellant appropriated three parcels of land, affecting none of the building improvements, but leaving landlocked 2.48 acres of land. The court awarded direct damages of $908,515 and $159,684 consequential damages. Respondent's experts relied upon six comparable sales, three of which were included in both reports. The trial court considered all the submitted comparables and gave greatest weight to those sales identified as Gobos to Interbreyco, Byrne to Interbreyco and Corporate Park to Flintkote. Appellant concedes that the Flintkote sale "could properly serve as a valid, competent and constructive comparable", but challenges the respondent's appraisers' upward adjustments as excessive. One of the respondent's appraisers, Mr. Schwaner, applied upward adjustments of 115% to relate it to the subject property, while the other expert, Mr. Lane, applied upward adjustments of 130%. The property, located near the subject land, in an area subject to the same zoning restrictions, and sold slightly more than a year after the appropriation, was sufficiently similar to the subject property so as to bring the assessment of its comparability within the province of the trial court (see Metial Realty Corp. v. State of New York, 31 A.D.2d 593). The Flintkote property was adjusted upwards to reflect the superior location of the subject property which permitted improvements without the construction of secondary roads. Additional adjustments were made for topography and shape. Both parties' witnesses testified that the Flintkote property was characterized by rugged terrain and there was evidence upon which the court could find that only a fraction of the land was usable for building purposes. By comparison, the undeveloped portions of the subject property could be developed for further office building improvements at normal cost. "The degree of comparability presents a question of fact, leaving adjustments on account of differences to be weighted and evaluated by expert witnesses" ( Latham Holding Co. v. State of New York, 16 N.Y.2d 41, 46). Proper adjustments having been made by claimant's appraisers, their testimony could properly be relied on by the trial court. Appellant's contention that since the Interbreyco properties are too small to permit construction of the same improvements which exist upon the subject property, they are noncomparable as a matter of law, is unfounded. Judgment affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.