Opinion
July 7, 1983
Appeal (1) from an order of the Court of Claims (Hanifin, J.), entered November 19, 1981, which granted the State's motion to dismiss the claim and denied claimants' cross motion for a new trial, and (2) from a judgment of said court, entered December 3, 1981, which awarded the State the sum of $118, with interest. When this case was before us on a prior occasion, we reversed the order of the Court of Claims, denied the State's motion to dismiss the claim, and granted claimants' cross motion to the extent of vacating the Court of Claims decision based upon that court's failure to consider the amount of damages fixed in the so-called Pomeroy appraisal ( Nunes v State of New York 91 A.D.2d 1135). In addition, upon consideration of the Pomeroy appraisal, we modified the judgment entered below by awarding claimants the sum of $45,150 ( id., at pp 1136-1137). Upon the State's appeal to the Court of Appeals, that court held that although we properly denied the State's motion to dismiss the claim and granted claimants' cross motion to vacate, we erred in making an award to claimant based upon the Pomeroy appraisal since that document was neither marked as an exhibit nor received in evidence. Accordingly, our order was modified and the matter was remitted to this court for further proceedings ( Nunes v State of New York, 59 N.Y.2d 745). In view of the decision of the Court of Appeals, we are constrained to remit the matter to the Court of Claims for a new determination of the claim which shall include a consideration of the damages figure contained in the Pomeroy appraisal, which figure was admitted into evidence by the trial court as an admission against interest by the State. Claimants' pending motion for an order admitting the Pomeroy appraisal into evidence in this court and for modification of the award based upon consideration of the appraisal is accordingly denied. Order and judgment reversed, on the law and the facts, and costs, motion denied and cross motion granted to the extent that the court's decision is vacated, and matter remitted to the Court of Claims for further proceedings not inconsistent herewith; motion by claimants denied, without costs. Sweeney, J.P., Kane, Casey, Yesawich, Jr., and Levine, JJ., concur.