In re City of New York , 319 N.Y.S.2d 314 ( 1971 )

McNally, J.

After three trials and two prior appeals to this court (24 A D 2d 243 and 31 A D 2d 530) and one appeal to the Court of Appeals (26 N Y 2d 841), the city appeals from the final decree entered December 3, 1969 insofar as it makes a land award of $355,000 for Damage Parcel 9 taken by the city on July 31, 1962. The claimant’s appeal to the Court of Appeals was pursuant to CPLR 5601 (subd. [d]) from the instant final decree for the purpose of bringing up for review this court’s original intermediate order of reversal (24 A D 2d 2431 and was dismissed on the grounds that the claimant was not an aggrieved party since the $355,000 award after the third trial was equal to the amount sought and obtained on the first trial.

We conclude the present valuation is justified by the proof and well within the range of the probative evidence in the record, and, accordingly, we affirm.

In 24 A D 2d 243, we held improper the determination of the value of the property used as a parking lot and gas station at the time of vesting on July 31, 1962, on the basis of a long-term lease dated September 1, 1961 under which the lessee agreed to erect a garage at a rental of $15,000 for the first year and $25,000 thereafter. When the said lease was made, the premises were subject to a prior lease running until 1970. Claimant had entered into an agreement with the prior lessee for surrender of the lease upon payment of $27,000. The right to surrender expired December 1, 1961, prior to the taking, and was never exercised. Thus, when Damage Parcel 9 was condemned, the prior lease was still in existence. Although plans for a garage under the September 1961 lease were filed on or about November 8, 1961, the proposed lessee discovered on November 11, 1961 that the premises were to be condemned and thereafter demanded and obtained the return of the first year’s rent and moneys held in escrow as security, thus the September 1961 lease terminated prior to the taking. The award was based on the existence of the September 1961 lease ignoring the fact that the premises were then utilized for a parking lot and gasoline station. The city was thereby required to respond to an award grounded on the capitalization of income from a nonexistent lease. Moreover, the award compensated claimant for an expense never incurred, the $27,000 to be paid for surrender of the 1961 lease.

On the second trial the award was $285,000 (31 A D 2d 530) and was reversed by this court on the ground that the valuation based on comparable property was not supported by the record.

On the third trial the court found comparable the sale price of a parcel at Cliff and Fulton Streets improved with a 10-level parking garage, reflecting a land value of $39.05 per square foot, that the claimant’s land was more valuable to the extent of 35%, thereby establishing a valuation of $52.55 per square foot, or $355,000 for the entire parcel. Since said valuation is not based on the capitalization of the projected income under the September 1961 lease, no deduction need be made for its termination.

The city advanced a valuation based on land assembly for an office building site and developed a unit which was claimed to be reasonably related to the value of nearby land. On the third trial, the learned court adopted the claimant’s theory and valued the land at $52.55 a square foot overall which unit was derived from the sale of the parking garage site at Fulton and Cliff Streets. In so doing, the trial court held and the record substantiates the holding that on the date of the vesting of title the vacant land with additional frontage on Cardinal Hayes Place contained 6,755 square feet. The property at Fulton and Cliff 'Streets is south of the Brooklyn Bridge, not within the Civic Center, while Damage Parcel 9 is located within the perimeter of the Civic Center which makes for an infinitely better location. On the date of vesting of title it was operated under lease as a parking lot and gas station. This use constituted a nonconforming use, thus the proposed construction of an automatic garage was permissible. Based on the testimony before the court on the retrial and the earlier records, the court found the comparable site, to wit, the Cliff Street garage sale site, was less valuable than Damage Parcel 9 and in fact Damage Parcel 9 was 35% more valuable. The trial court further found that the only credible evidence in the record was the testimony of the claimant’s real estate expert.

A trial court is required to value the property on the evidence submitted. It is bound to make its award within the range of the probative evidence in the record. Its findings may not be arbitrarily determined. (Matter of City of New York [A. & W. Realty Corp.], 1 N Y 2d 428, 433.) We hold the trial court was fully justified in its adoption of the claimant’s adjustment of the Cliff Street sale. In absence of other evidence no other legal conclusion could have been reached. (A. & W. Realty Corp., supra.) The authorities support this view.

In Godfried v. State of New York (18 N Y 2d 896, affg. 22 A D 2d 973) the Court of Appeals affirmed a modification of an award based on the use by the Appellate Division of the only sale in the record of comparable size and availability— a shopping center site—even though the sale was of land in the City of Kingston and the condemned land was located one-half mile west of the outer limits of the city, the court holding there was no valid reason for disturbing the trial court’s determination.

In Brocka v. State of New York (31 A D 2d 852) the main comparable relied on by claimant’s expert was located 55 miles away inside a village, had been sold 10 years earlier, and other than being a gasoline service station differed in size of buildings, frontage, depth and terrain. The Appellate Division held the trial court was justified in making an attempt to evaluate the property and could accept as the basis for such evaluation the earlier sale with a proper adjustment for differences from the property under consideration.

We disagree with the statement of our dissenting brother that ‘ ‘ this case points up the ineptitude of the present judicial system”. The fact is the case points up the efficiency of our judicial process. In 24 A D 2d 243 and 31 A D 2d 530 {supra), we set forth the defects in the records then before us and ordered new trials for the reasons hereinbefore stated all in keeping with the purpose to enable the parties to establish a proper basis for compensation. A person whose property is condemned is entitled to the protection of our court system, both at trial and appellate levels. It should be borne in mind that the condemnee is an involuntary litigant not here through some act, omission or transaction of his own.

Despite the requirement that the award be within the range of the probative evidence in the record, the dissent advances a basis for compensation unsupported by the record and not suggested or relied on by either party. In the determination of fair compensation each party is entitled to advance his basis for valuation. Since it is the condemnor who assumes to take the property of the condemnee, without his consent, the condemnor is required to justly compensate the condemnee. If, for reasons not a matter of record, the condemnor elects to rely on an untenable basis of valuation, the court is required to adjudicate the value on the basis of the probative evidence.

We conclude the present valuation is justified and well within the range of the probative evidence in the record. (Matter of City of New York [A. & W. Realty Corp.], supra; Brocka v. State of New York, supra; Godfried v. State of New York, supra.)

Findings of a trial court are generally to be given the same effect as jury verdicts. (5A C. J. S., Appeal and Error, § 1656 [1].) After three trials, absent compelling circumstances, which we do not find, the determination of factual issues should be accorded finality. (Bianchi v. Klein, 229 App. Div. 758, affd. 255 N. Y. 538; Lyman v. Village of Potsdam, 204 App. Div. 528; Gutman v. Weisbarth, 194 App. Div. 351; Grossman v. Boisseau, 104 N. Y. S. 2d 858, affd. 279 App. Div. 1051; 5A C. J. S., Appeal and Error, § 1654.)

The judgment should be affirmed, without costs or disbursements.