Kupiec v State of New York

Kupiec v State of New York 2007 NY Slip Op 08684 [45 AD3d 1416] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Charles E. Kupiec, Appellant, v State of New York, Respondent. (Claim No. 105669.)

—[*1] Cohen & Cohen LLP, Utica (Daniel S. Cohen of counsel), for claimant-appellant.

Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), for defendant-respondent.

Appeal from a judgment of the Court of Claims (Diane L. Fitzpatrick, J.), entered September 26, 2006 in an action seeking damages for defendant's appropriation of certain property pursuant to Highway Law § 30 and the Eminent Domain Procedure Law. The judgment, among other things, awarded claimant the total sum of $299,911.72 against defendant.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Claimant commenced this action seeking damages for defendant's appropriation of 5.578 acres of land owned by claimant (see Highway Law § 30). Prior to the taking, claimant owned a total of 7.40 acres, and claimant was left with 1.822 acres following the taking. Claimant appeals from a judgment awarding him direct damages of $204,600, the Court of Claims having valued 1.712 acres as developable before the taking and 1.667 acres as developable after the taking. Claimant contends on appeal that 2.99 acres were developable before the taking and that .911 acres were developable after the taking. We affirm.

"In a condemnation case, the court's award should be upheld where it is within the range of expert testimony or otherwise supported by the evidence and adequately explained by the court" (Transitown Plaza Assoc. v State of New York, 1 AD3d 997, 997 [2003]; see Madowitz v State of New York, 288 AD2d 442 [2001]). Here, the court's determination was supported by defendant's appraisal and other evidence establishing that the portion of claimant's property consisting of a flood plain would be capable of being developed only with the approval of the local zoning board, at excessive cost and effort. Claimant thus failed to establish that it was "reasonably probable that the asserted highest and best use could or would have been made of the subject property in the near future" (Matter of City of New York [Rudnick], 25 NY2d 146, 149 [1969], mot to amend remittitur granted 26 NY2d 748 [1970]). Present—Hurlbutt, J.P., Centra, Lunn, Fahey and Pine, JJ.