Janeski v. State

Appeal by the State from a judgment of the Court of Claims in the amount of $15,391.50, including interest. The State appropriated a portion of claimant’s land for the Amsterdam East — Route 5 connection. The land appropriated was unimproved, except that it contained a chicken coop of negligible value and the septic system for buildings located on the unappropriated property. The court below found that the best and highest use of the property was for commercial and residential use and that the market value of the entire property was $45,000 before taking and $31,500 after taking resulting in damages of $13,500. This figure he then broke down into $6,000 direct damages for the taking and $7,500 consequential damages to the remainder. The State takes the position that there is no evidence upon which the Court of Claims could find $7,500 consequential *846damages. We must agree. Here only one of claimant’s witnesses testified as to the amount of consequential damages, and this opinion _ was that such damages amounted to $5,000. The State’s expert had a much lower estimate. Thus there is no support anywhere in the evidence for the $7,500 figure (Matter of the City of N. Y. [A. & W. Realty Corp.], 1 N Y 2d 428). Even with the addition of the $1,000 for the replacement of the septic system to the maximum estimate of $5,000, the total would still be $1,500 under the amount awarded. Upon our appraisal of the evidence, we find the direct damage to be $6,000 and the consequential damage to be $6,000. Judgment modified, on the law and the. facts, by reducing the. award of consequential damages to $6,000 and the total award to $12,000 and interest, and as so modified, affirmed, without costs. Gibson, P. J., Herlihy, Taylor and Aulisi, JJ., concur,