53 A.D.2d 613 | N.Y. App. Div. | 1976
In a condemnation proceeding, claimants appeal, as limited by their brief, from so much of an order and decree (one paper) of the Supreme Court, Suffolk County, dated June 3, 1974, as, in making a total award of $183,373 for the damage parcel, based that award upon an evaluation of 50 cents per square foot for the 82,045 square feet of the rear portion of the subparcel thereof designated as Parcel C. Order and decree reversed insofar as appealed from, on the law and facts, with costs to appellants, and the total award for the damage parcel is increased to $253,111. The county’s appraisal report, as well as the report of the claimants, evaluated the rear portion of the subparcel designated as Parcel C on the basis of the probability of a zoning change from residential to commercial. The front portion had previously been zoned for commercial use. No issue was raised at the trial that such zoning change was not probable; the physical characteristics and dimensions of the rear portion clearly support the supposition that such a change was probable. The trial court did not request proof on this issue after the county’s appraiser testified in accordance with his report. It was therefore incorrect for the trial court to evaluate the rear portion at 50 cents per square foot on the basis of residential zoning. Under the proof adduced, we find that the proper valuation of the rear portion was $1.35 a square foot, based upon the probability of rezoning. Latham, Acting P. J., Margett, Damiani, Rabin and Hawkins, JJ., concur.