        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

760
CA 13-02096
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


TEHAN’S CATALOG SHOWROOMS, INC.,
CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 117360.)
(APPEAL NO. 2.)


BIERSDORF & ASSOCIATES, P.A., MINNEAPOLIS, MINNESOTA (DAN BIERSDORF OF
COUNSEL), FOR CLAIMANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Christopher J.
McCarthy, J.), entered February 21, 2013. The judgment awarded
damages to claimant.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant commenced this action seeking damages for
defendant’s appropriation by condemnation of portions of two
contiguous parcels of its property. Following a trial, the Court of
Claims awarded damages to claimant in the amount of $43,314.53, plus
interest. We affirm.

     We reject claimant’s contention that the court erred in denying
its motion seeking an order “excluding [defendant’s appraisal] from
evidence” on the ground that it improperly valued the two parcels as a
single economic unit without meeting the legal requirements therefor.
“To establish the propriety of valuing two separate parcels of
property as a single economic unit for the purpose of awarding
condemnation damages, ‘the [party] must show that the subject parcels
are contiguous, and that there is a unity of use and of ownership’ ”
(90 Front St. Assoc., LLC v State of New York, 79 AD3d 708, 709; see
Pedersen v State of New York, 50 AD2d 1004, 1005, lv denied 39 NY2d
707; Erly Realty Dev. v State of New York, 43 AD2d 301, 303-304, lv
denied 34 NY2d 515). Here, the record establishes that defendant
“appraised each parcel separately, assigning a different highest and
best use for each” (Pedersen, 50 AD2d at 1004). Thus, defendant did
not treat the parcels as a single economic unit and, consequently, was
not required to make a showing that the parcels were contiguous and
                                 -2-                           760
                                                         CA 13-02096

had a unity of use and of ownership (cf. Matter of Village of Port
Chester [Bologna], 95 AD3d 895, 896, lv denied 20 NY3d 852; Pedersen,
50 AD2d at 1004-1005).

     Contrary to claimant’s further contention, we conclude that it
did not meet its “burden of proof . . . [of] establish[ing] indirect
damages and [of] furnish[ing] a basis upon which a reasonable estimate
of those damages [could] be made” (Lerner Pavlick Realty v State of
New York, 98 AD3d 567, 568; see generally Rose Park Place, Inc. v
State of New York, ___ AD3d ___, ___ [May 2, 2014]). Claimant
attempted to establish that, before the appropriation, the highest and
best use of one of the parcels was retail use, but that such use would
be prohibited by a local zoning ordinance after the appropriation
because the parcel’s parking area would be reduced. At trial,
however, claimant failed to prove that there was sufficient parking
for retail use of the parcel before the appropriation. Thus, claimant
“failed to establish that it was ‘reasonably probable that the
asserted highest and best use could or would have been made of the
subject property in the near future’ ” (Kupiec v State of New York, 45
AD3d 1416, 1417, quoting Matter of City of New York [Rudnick], 25 NY2d
146, 149, mot to amend remittitur granted 26 NY2d 748).

     In light of our determination, we do not address claimant’s
remaining contention.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
