Donaloio v. State
Cases that cite this one
16 later published cases cite this decision.
- R-GOSHEN LLC v. Village of Goshen (District Court, S.D. New York 2003)
- Fodera Enterprises v. State (Appellate Division of the Supreme Court of New York 2000)
- In re the Acquisition of Easements by Central New York Oil & Gas Co. (Appellate Division of the Supreme Court of New York 2013)
- In re the Acquisition of Easements by Central New York Oil & Gas Co. (Appellate Division of the Supreme Court of New York 2013)
- New York Central Lines, LLC v. State (Appellate Division of the Supreme Court of New York 2012)
- New York Central Lines, LLC v. State (Appellate Division of the Supreme Court of New York 2012)
- Gilbert v. State (N.Y. Ct. Cl. 2009)
- Webster v. Ragona (Appellate Division of the Supreme Court of New York 2008)
- County of Suffolk v. Kalimnios (Appellate Division of the Supreme Court of New York 2000)
- North Colonie Central School District v. State (Appellate Division of the Supreme Court of New York 1999)
- North Colonie Central School District v. State (Appellate Division of the Supreme Court of New York 1999)
- Faulkner v. State (Appellate Division of the Supreme Court of New York 1998)
- In re the Acquisition of Real Property by Schenectady (Appellate Division of the Supreme Court of New York 1993)
- Van Valkenburgh v. State (Appellate Division of the Supreme Court of New York 1987)
- Akey v. State (Appellate Division of the Supreme Court of New York 1985)
- Donaloio v. State (Appellate Division of the Supreme Court of New York 1985)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
At issue in this case is the amount owing to claimants for the appropriation on October 12,1977 of a sewage flow easement on property adjacent to their restaurant. Both lower courts agreed on the value of the property before the taking, but disagreed on the measurement of damages. The trial court found the highest and best use of the property unchanged by the appropriation, accepting the State’s evidence and representations at trial during 1980 that a cure involving a system of piping the sewage off-premises was feasible. The trial court awarded claimants the cost to cure, as well as other direct and consequential damages, whereas the Appellate Division, in arriving at the fair market value of claimants’ property after the taking, rejected the proffered cure because it required governmental permits and the use of land outside the subject property.
The only potentially feasible alternative method demonstrated at trial for claimants to dispose of the sewage generated by their restaurant required governmental approval or the use of certain State facilities not previously committed, to this purpose. Representations at trial, years after the appropriation, that the necessary authorizations would be forthcoming upon application by claimants do not satisfy the requirement — if the proposed cure is to effect a mitigation of damages — for timely, unequivocal assurance by the State, the condemnor, that this alternative would be implemented (see, Wolfe v State of New York, 22 NY2d 292; see also, Pollak v State of New York, 41 NY2d 909). Accordingly, we adopt as more closely comporting *813 with the weight of the evidence both the Appellate Division’s findings that the highest and best use of the property after the taking was for apartments and a possible craft shop, and its calculation of damages.
Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.
Order affirmed, with costs, in a memorandum.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.