Bay Islip Associates v. State

In a condemnation proceeding, the claimant appeals, on the ground of inadequacy, and the defendant cross-appeals, on the ground of excessiveness, from a judgment of the Court of Claims (Scuccimarra, J.), dated August 3, 2004, which, after a nonjury trial, is in favor of the claimant and against the defendant in the principal sum of $214,281.

Ordered that the judgment is modified, on the law, by reducing the award to the principal sum of $71,092; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Court of Claims for the entry of an appropriate amended judgement.

The claimant’s property is located in the Town of Islip at the southwest corner of Montauk Highway (also known as Route 27A) and Saxon Avenue. The subject property contains four buildings, comprising approximately 58,150 square feet, which house a supermarket, laundromat, bank, restaurant, and medical office space. In 1956 the claimant’s predecessor-in-title deeded to the Town of Islip a 25-foot strip of land along the property’s easterly border with Saxon Avenue. However, in 1957 the Town agreed that the claimant’s predecessor-in-title could make “full use” of the 25-foot strip of land for parking. In 1999 the State of New York appropriated approximately 5,616 square feet of the claimant’s property running along its northerly border with Montauk Highway, including part of the 25-foot strip of land along Saxon Avenue, for a highway expansion.

The defendant contends, inter alia, that the Court of Claims erred in awarding severance damages for the loss of parking located on the Town-owned land along the property’s easterly border with Saxon Avenue. The claimant argues, inter alia, that the Court of Claims erred in failing to award severance damages for the loss of parking along the property’s northerly border with Montauk Highway due to the taking.

The Court of Claims erred in awarding severance damages to *408the claimant in the sum of $143,189 for the loss of parking on the Town-owned land along Saxon Avenue. Assuming that the claimant had a right to compensation for any loss of parking on the Town-owned land to which it had full use of pursuant to the 1957 agreement (see Matter of Ossining Urban Renewal Agency v Lord, 39 NY2d 628 [1976]), the claimant failed to demonstrate that there would be inadequate parking after the taking (see Ekorb Assoc. v State of New York, 41 AD2d 794 [1973]; cf. Martabano v State of New York, 120 AD2d 712 [1986]).

The parties’ remaining contentions are without merit. Adams, J.P., Skelos, Fisher and Lunn, JJ., concur.