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

326
CA 13-01250
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


ROSE PARK PLACE, INC., COLUMN DEVELOPMENT, INC.,
E.L. FREEMAN ROAD, LLC, FRED HANANIA, MARY JO
LOBRUTTO AND ROGER PASQUARELLA,
CLAIMANTS-RESPONDENTS,

                    V                                OPINION AND ORDER

STATE OF NEW YORK, DEFENDANT-APPELLANT.
(CLAIM NO. 114089.)
(APPEAL NO. 1.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL),
FOR CLAIMANTS-RESPONDENTS.


     Appeal from a judgment of the Court of Claims (Michael E. Hudson,
J.), entered September 14, 2012. The judgment awarded claimants money
damages for the appropriation of land pursuant to the Eminent Domain
Procedure Law and the Highway Law.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the award of consequential
damages and substituting therefor an award of $1,925,275 with interest
of 9% per annum for the period from July 25, 2006 to September 14,
2012 and as modified the judgment is affirmed without costs.

     Opinion by FAHEY, J.: Here we address the issue whether
consequential damages may be awarded when the real property in
question was sold months before the taking of other real property that
affects the land in question. Claimants commenced this proceeding
seeking damages for the diminished value of approximately 16 acres of
what claimants characterized as “remaining land” following defendant’s
taking of approximately 1.22 acres of land from what was claimants’
17.3-acre parcel. Following a trial, the Court of Claims awarded
claimants consequential damages with respect to what the court
concluded was 12.835 acres of that parcel. Included in the 12.835
acres of land for which the court awarded consequential damages were
4.63 acres of land sold by claimants to Progressive Casualty Insurance
Company (Progressive Parcel) for $1,800,000. That sale occurred in
November 2005, i.e., before the taking of the aforementioned 1.22
acres of land in July 2006. Defendant now contends that the award of
consequential damages was excessive inasmuch as the court erroneously
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                                                            CA 13-01250

awarded consequential damages for the Progressive Parcel.    We agree.

                                  I

     Our analysis begins “with the proposition that [i]t is
constitutionally mandated that the sovereign will pay just
compensation for property it takes by its powers of eminent domain.
Just compensation is properly measured by determining what the owner
has lost” (Matter of USA Niagara Dev. Corp. [Settco, LLC], 51 AD3d
377, 379, lv denied 11 NY3d 704 [internal quotation marks omitted]).
Put differently, “[w]hen [defendant] takes property by eminent domain,
the Constitution requires that it compensate the owner ‘so that he may
be put in the same relative position, insofar as this is possible, as
if the taking had not occurred’ ” (Matter of City of New York [Kaiser
Woodcraft Corp.], 11 NY3d 353, 359, rearg denied 11 NY3d 903, quoting
City of Buffalo v J. W. Clement Co., Inc., 28 NY2d 241, 258, rearg
denied 29 NY2d 640 [hereafter, Clement]).

     “When there is a partial taking of land, damages are measured ‘by
finding the difference between the fair market value of the whole
before the taking and the fair market value of the remainder after the
taking’ ” (Erie County Indus. Dev. Agency v Fry, 254 AD2d 721, 721-
722, quoting Acme Theatres v State of New York, 26 NY2d 385, 388; see
McDonald v State of New York, 42 NY2d 900, 900; National Fuel Gas
Supply Corp. v Goodremote, 13 AD3d 1134, 1135). Therefore, “when
[defendant] takes part of a condemnee’s property and leaves a
remainder, just compensation includes not only the direct damages for
the portion that was taken, but also any consequential or indirect
damages caused by the taking that impaired the remaining portion of
the property . . . Consequential damages are measured by the
difference between the before and after values, less the value of the
land and improvements appropriated . . . The burden of proof is on the
claimant to establish indirect damages and to furnish a basis upon
which a reasonable estimate of those damages can be made” (Lerner
Pavlick Realty v State of New York, 98 AD3d 567, 568).

                                  II

     Before us here is not an issue concerning the amount of
consequential damages with respect to the Progressive Parcel, but the
issue whether any such damages should have been awarded relative to
that parcel. Viewed as a whole, the Court of Appeals’ decision in
Wilmot v State of New York (32 NY2d 164, 167-168, rearg denied 33 NY2d
657) stands for the proposition that the condemnee is allowed to
multiply the higher per-acre value of the original parcel by the
number of acres under his or her ownership at the time of the taking,
not by the acreage he or she once owned and had previously sold (see
also 90 Front St. Assoc., LLC v State of New York, 79 AD3d 708, 710).
In view of that proposition of law, here the court properly excluded
the sale of the Progressive Parcel in calculating the pre-taking, per-
acre value of claimants’ parcel. The court, however, erred in
including the Progressive Parcel in the acreage for which it awarded
consequential damages.
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                                                         CA 13-01250

     Claimants attempt to evade Wilmot by contending that the part of
that case providing that consequential damages are unavailable
relative to property that is sold prior to a planned taking and from
which no land is ultimately appropriated is dicta. We reject that
contention. “ ‘To identify dictum, it is useful to turn the
questioned proposition around to assert its opposite, or to assert
whatever alternative proposition the court rejected in its favor. If
the insertion of the rejected proposition into the court’s reasoning,
in place of the one adopted, would not require a change in either the
court’s judgment or the reasoning that supports it, then the
proposition is dictum. It is superfluous. It had no functional role
in compelling the judgment’ ” (People v Taylor, 9 NY3d 129, 164 [Read,
J., dissenting], quoting Leval, Madison Lecture: Judging Under the
Constitution: Dicta about Dicta, 81 NYU L Rev 1249, 1257 [2006]).
Applying that test here, we conclude that the part of Wilmot at issue
is a secondary holding, i.e., that such determination was necessary to
Wilmot’s primary holding with respect to the unsold land and is
therefore law (see Pollicino v Roemer & Featherstonhaugh, 277 AD2d
666, 667-668; see also Matter of Hellner v Board of Educ. of Wilson
Cent. Sch. Dist., 78 AD3d 1649, 1650-1651; cf. United States v
Henderson, 961 F2d 880, 882).

     Claimants further attempt to avoid the holding of Wilmot through
reference to the “condemnation blight” doctrine, but that attempt
likewise fails. Clement teaches that a de facto taking “requires a
physical entry by the condemnor, a physical ouster of the owner, a
legal interference with the physical use, possession or enjoyment of
the property or a legal interference with the owner’s power of
disposition of the property. On the other hand, ‘condemnation blight’
relates to the impact of certain [value-depressing] acts [on the part
of the condemning authority] upon the value of the subject property.
It in no way imports a taking in the constitutional sense, but merely
permits of a more realistic valuation of the condemned property in the
subsequent de jure proceeding. In such a case, compensation shall be
based on the value of the property at the time of the taking, as if it
had not been subjected to the debilitating effect of a threatened
condemnation” (28 NY2d at 255; see id. at 254).

     Clement also teaches that, “[i]n . . . cases where true
condemnation blight is present, the claimant may introduce evidence of
value prior to the onslaught of the ‘affirmative value-depressing
acts’ ” (id. at 257-258). In other words, the concept of condemnation
blight “relates to the rules of evidence” (id. at 254), and is
relevant to the measurement of damages; indeed, “when damages are
assessed on [a] claim for [a] de jure appropriation, the claimant’s
property should be evaluated not on its diminished worth caused by the
condemnor’s action, but on its value except for such ‘affirmative
value-depressing acts’ of the appropriating sovereign” (id. at 258).
Clement does not, however, impact the application of the
Wilmot principle, pursuant to which consequential damages are
unavailable relative to property that is sold prior to a planned
taking and from which no land is ultimately appropriated.
                                 -4-                           326
                                                         CA 13-01250

     Inasmuch as claimants did not own the Progressive Parcel at the
time of the taking, the concept of condemnation blight is irrelevant
here. Moreover, even if claimants frame their claim for de facto
taking by reference to condemnation blight, such characterization is
unpersuasive inasmuch as there was no “physical entry by the
condemnor, . . . physical ouster of the owner, . . . legal
interference with the physical use, possession or enjoyment of the
property or . . . legal interference with the owner’s power of
disposition of the [Progressive Parcel]” (id. at 255).

                                 III

     We now turn to the issue of the remedy. Here, defendant
challenges not the amount of consequential damages per square foot,
but the square feet subject to an award of consequential damages. The
square footage at issue is known to us, and defendant does not contest
either the court’s pre-taking valuation of the land at issue ($450,000
per acre or $10.33 per square foot) or the post-taking value of the
land at issue ($1,766,625).

     Our analysis is therefore straightforward: absent the
Progressive Parcel, there are 8.21 acres of land for which
consequential damages may be awarded. Multiplying the pre-taking
value of $10.33 per square foot by 357,628 square feet yields a
product of $3,694,297.24. Subtracting $1,766,625 (the post-taking
value of the land at issue) yields a difference of $1,927,672.24 in
consequential damages. That figure is $281,103 less than what the
court awarded in consequential damages and, consistent with claimants’
suggestion, we conclude that the judgment should be modified by
vacating the award of consequential damages and substituting therefor
an award of $1,925,275 with an interest rate of 9% per annum covering
the period from July 25, 2006 to September 14, 2012.

                                  IV

     Accordingly, we conclude that the court erred in awarding
consequential damages for the Progressive Parcel, and that the
judgment should be modified by vacating the award of consequential
damages and substituting therefor an award of $1,925,275 with an
interest rate of 9% per annum covering the period from July 25, 2006
to September 14, 2012.




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
