Mobil Oil Corp. v. State (55 A.D.2d 821, 1976)

Judgment unanimously modified, on the facts, in accordance with memorandum and as modified affirmed, with costs to claimant, Simons, J. not participating. Memorandum: Claimant, Mobil Oil Corporation, was awarded $95,478.60 plus interest for all damages resulting from the appropriation of land and service station improvements by the State pursuant to sections 30 and 349-c of the Highway Law as part of the North Genesee Street Arterial Highway in the City of Utica. Claimant does not dispute the land or right of way award but contends that the Court of Claims’ improvement value ($20,673.60) was inadequate. We agree. The award for improvements was below the range presented by the appraisers and reflected an underestimate of gallonage figures for the service station. The Trial Judge failed to take into account uncontroverted evidence that State construction work one block north of the subject property disrupted traffic in the area and caused a reduction in gallonage for two of the three years preceding the appropriation. We believe that the figure presented by claimant’s appraiser, which was even less than the estimate by the State, more correctly places claimant in the same relative position as if the taking had not occurred (Wilmot v State of New York, 32 NY2d 164, 169; City of Buffalo v Manguso, 42 AD2d 673, 674). The award is accordingly modified upward $6,165.28, plus interest, to reflect this underestimation of gallonage. We have reviewed claimant’s other contentions and find them without merit. (Appeal from judgment of Court of Claims—appropriation.) Present— Moule, J. P., Cardamone, Simons, Mahoney and Dillon, JJ.