Scalici v New York City Dept. of Transp.
Supreme Court, Richmond CountyFebruary 14, 201234 Misc.3d 1232(A)950 N.Y.S.2d 611950 N.Y.S.2d 611 (Table)
34 Misc.3d 1232(A), 950 N.Y.S.2d 611 (Table), 2012 WL 662176 (N.Y.Sup.), 2012 N.Y. Slip Op. 50351(U)
This opinion is uncorrected and will not be published in the printed Official Reports.
*1 Claire Scalici and WOODCHUCK WOOD PACKAGING CO., Plaintiff(s),
The New York City Department of Transportation, City of New York, And Jab Construction Inc., Defendant(s).
Supreme Court, Richmond County
Decided on February 14, 2012
CITE TITLE AS: Scalici v New York City Dept. of Transp.
OPINION OF THE COURT
Philip G. Minardo, J.
In1997, plaintiffs CLAIRE SCALICI and WOODCHUCK WOOD PACKAGING CO. commenced this action against defendants NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CITY OF NEW YORK and JAB CONSTRUCTION INC.1 to recover for damages resulting from the defendants' reconstruction of the Dehart Avenue bridge on Staten Island, New York. The Dehart Avenue bridge is adjacent to property owned by the plaintiffs. During the pendency of the action, plaintiff CLAIRE SCALICI transferred her interest in the real property to her husband JACK SCALICI who, in turn, transferred his interest to UNION DEHART LLC. Plaintiff WOODCHUCK WOOD PACKAGING CO. is no longer in existence. Accordingly, the sole remaining plaintiff is UNION DEHART LLC (hereinafter “Plaintiff”).
On April 14, 1994, prior to the commencement of construction, Claire Scalici executed a Real Property Access Consent Agreement with defendant NEW YORK CITY DEPARTMENT TRANSPORTATION (“DOT” which provides that the DOT was required to, among other things, indemnify plaintiff for any damage to its property during the construction. At the conclusion of the trial, the parties jointly made an application to conform the pleadings to the proof elicited at trial which was granted by the court and plaintiff's claims were limited to its damages resulting from the breach of the agreement and/or damages resulting from the DOT's alleged “de facto” taking of plaintiff's property.
DE FACTO TAKING
Plaintiff's property is adjacent to Dehart Avenue which is a two-way street that provides the sole means of ingress and egress to plaintiff's property. The reconstruction project began in 1995 and was completed in 1997. At the time of the reconstruction, plaintiff's property was used solely for commercial purposes. It is uncontroverted that a portion of plaintiff's property line *2 which abuts Dehart Avenue became obstructed by a metal guide rail, utility pole2, fire hydrant and cement block as a result of the reconstruction project. Plaintiff claims that these obstructions prevent the plaintiff from obtaining the highest and best use of the property.
The issue before the court is whether the plaintiff is entitled to an award of consequential damages because the obstructions so “impair[s] access to the remaining property that it can no longer sustain its previous highest and best use” (Split Rock Partnership v. State of New York, 275 AD2d 450, 451 ).
Plaintiff's expert site development planner testified that the obstructions on the property would prevent the construction of single family detached townhouses with driveway cutoffs along the frontage of Dehart Avenue. The single family townhouses would have been able to be sold in “fee simple” and would have individual storm drains, water, sanitary, and sewer connections. The development planner indicated that the property could be also improved with the creation of a private road on the property which would allow the construction of townhouses/condominiums. However, he opined that the development of the property with a private road would be less desirable because of the resulting reduction in size of the backyard of each unit; the necessity of creating a homeowner's association for the payment of maintenance expenses of the private road (snow removal, etc.); the use of common water and sewer lines; and the inconvenience of parking. The site development planner stated that he prepared a plan which incorporated a private road, however, he failed to testify as to the adequacy of that plan in order to effectuate the best use of the property. In addition, the development planner testified regarding his preparation of two other (2) plans with the obstructions in place. However, these plans were prepared pursuant to zoning restrictions which became effective subsequent to 1997.
Plaintiff's appraisal expert furnished the court with an appraisal report of the subject property which used the valuation date of May 17, 2005 rather than the date that the reconstruction was completed in 1997. The appraiser also testified that the value of the property in 1997 without obstructions was $200,000 and with obstructions was $45,000. However, the expert provided no report or other basis for his conclusion that the value was diminished other than his testimony that he used comparable values “proximate to the April 14, 1997 value dated”. The specific comparable sales were not provided to the court and there was no other evidence introduced to support his conclusion that the value was diminished by $155,000 in 1997.
Defendant's expert site development planner testified that the property could have been developed with the obstructions in place by the utilization of a private road and the construction of townhouses with parking at the rear of the premises.
Defendant's expert appraiser testified that the value of the property at the time of construction in 1997 was $200,000 which was the same value that plaintiff's appraiser had placed on the property. However, defendant's appraiser set forth that there would be no diminution of value of the property with the obstructions in place because the proposed development plan would obtain the highest and best use of the property. Defendant's appraiser testified as to specific comparable sales in order to reach his conclusion.
The fundamental issue in this matter is whether plaintiff is entitled to consequential *3 damages due to the diminution in value of the property as a result of the obstructions “even though the broad category of highest and best use remains the same” (Matter of County of Rockland v. Kohl Induct. Park Co., 147 AD2d 478 ). It is uncontested that the obstructions prevent direct access to the frontage of the property resulting in the inability to construct single family homes. In addition, both parties agree that the property could be developed with a private road with townhouses. Plaintiff contends that it has established a diminution in the potential development of highest and best use of the property (see, Matter of County of Rockland, supra.).
Plaintiff's expert appraiser opined that the value of the property in 1997 was diminished according to his review of appraisals that his firm had done for the same time period (six to seven hundred residential appraisals on Staten Island per year) and his use of certain comparable values that were “proximate to the April 14, 1997 value date”. However, the expert's opinion was without foundation as he did not specifically identify the comparable sales, therefore giving his testimony little value. In addition, the Court finds the testimony of defendant's expert that there was no diminution of the value of the property more credible as the appraiser provided sufficient foundation for his opinion including specific comparable sales during the subject time period.
Although plaintiff may have established that there has been a diminution in value to the property as a result of the obstructions even though the broad category of its use remained the same, any determination by the Court as to the value attributable to such diminution would be purely speculative and unsupported by the record.
BREACH OF AGREEMENT
Plaintiff also contends that defendant breached the Real Property Access Consent Agreement by not restoring the property to its existing condition prior to the construction. Primarily, plaintiff claims that there is flooding on the property that is solely attributable to defendant's work.
Two witnesses testified on behalf of the plaintiff who asserted that there was no flooding on the property prior to the construction and that there was significant flooding after the work was completed. Plaintiff also produced an expert who testified that there was, if fact, flooding on plaintiff's property which resulted from the construction and that the cost to alleviate the condition was approximately $33,000.
Defendant's expert engineer testified that location, quality and materials of the storm drain system which was in existence prior to the construction was insufficient to properly drain the subject property. The expert concluded that the slope of the drainage pipe to the street was too flat and that the diameter of the existing drain pipe was too small to adequately drain the system. Defendant also asserts that there was no direct evidence which causally connected defendant's work to damage to the plaintiff's drainage pipe or other property which resulted in flooding. Lastly, defendant alleges that plaintiff's commercial use of the property contributed and/or created the flood condition.
The Court finds that the testimony of the plaintiff's witnesses that the property only flooded after the construction as credible. Defendant did not provide any testimony or other evidence to controvert the testimony of these witnesses. Defendant's contention that the existing drain system was insufficient is speculative especially since there is no evidence that the property *4 flooded prior to the construction. Accordingly, plaintiff is entitled to recover the sum of $33,000 as and for damage and/or repair to the drain system.
Lastly, the court finds no compelling reason to deviate from the statutory presumptive and fair rate of 9% on the award herein.
Accordingly, it is
ORDERED, that plaintiff UNION DEHART LLC's cause of action against defendant NEW YORK CITY DEPARTMENT OF TRANSPORTATION for the de facto takin gof plaintiff's property is dismissed;
ORDERED, that plaintiff UNION DEHART LLC shall be awarded ths sum of $33,000 as and for damages to plaintiff's storm drain system as a result of the breach of the agreement by NEW YORK CITY DEPARTMENT OF TRANSPORTATION.
This shall constitute the decision and order of the Court.
Dated: February 14, 2012
E N T E R,
HON. PHILIP G. MINARDO
Plaintiff's counsel indicated that the action would be discontinued against defendant JAB CONSTRUCTION INC. because it was a “defunct” corporation.
Defendant NEW YORK CITY DEPARTMENT OF TRANSPORTATION denies responsibility for the placement of the utility pole.
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