A recent decision by the Fourth Department, West Gates CIP v. State of New York, __ A.D.3d ___, 2022 NY Slip Op 00597 (Jan. 28, 2022) affirmed an award in a partial taking which only awarded direct damages.

The Fourth Department stated: “Contrary to claimant’s contention, the court correctly applied claimant’s burden of proof and determined that claimant failed to satisfy its burden of establishing indirect damages. Where, as here, claimant contends that the highest and best use of the property is something other than its current or existing use, it must be shown ‘that there is a reasonable probability that its asserted use could or would have been made within the reasonably near future’ (Matter of City of New York (Broadway Cary Corp.), 34 N.Y.2d 535, 536 (1974), rearg denied 34 N.Y.2d 916 (1974); see Tehan’s Catalog Showrooms v. State of New York (appeal No. 2), 118 A.D.3d 1497, 1498 (4th Dept. 2014), lv. denied 24 N.Y.3d 913 (2015); Kupiec v. State of New York, 45 A.D.3d 1416, 1417 (4th Dept. 2007)). It is claimant’s burden to make that showing (see DiGiacomo v. State of New York, 182 A.D.3d 977, 979 (3d Dept. 2020); Rodman v. State of New York, 109 A.D.2d 737, 737 (2d Dept. 1985)) by a preponderance of the evidence (see Sixth Ave. R.R. Co. v. Metropolitan El. Ry. Co., 138 NY 548, 553 (1893)). The claimant must establish that the use is economically, legally, and physically feasible as well as maximally profitable (see DiGiacomo, 182 A.D.3d at 979; Matter of City of Syracuse Indus. Dev. Agency (Alterm), 20 A.D.3d 168, 170 (4th Dept. 2005)). A speculative or hypothetical use is insufficient (see Broadway Cary Corp., 34 N.Y.2d at 536; Matter of Village of Haverstraw (AAA Electricians), 114 A.D.3d 955 (2d Dept. 2014), lv. denied 24 N.Y.3d 906 (2014); City of Syracuse Indus. Dev. Agency (Alterm), 20 A.D.3d at 170-171).”

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