In re the Town of Islip , 66 A.D.2d 854 ( 1978 )

In a condemnation proceeding, the parties cross-appeal from an order and decree (one paper) of the Supreme Court, Suffolk County, dated July 13, 1977, which, after a nonjury trial, fixed the compensation for the taking. The appeals also bring up for review so much of a further order of the same court, dated September 8, 1977, as upon reargument, adhered to its original determination. Cross appeal of claimants dismissed, without costs or disbursements. The cross appeal was not perfected in accordance with the rules of this court (see Howe Ave. Nursing Home v Nafus, 54 AD2d 686). Appeal from order and decree dated July 13, 1977, dismissed as academic. That order and decree was superseded by the order made upon reargument. Order dated September 8, 1977, affirmed insofar as reviewed. The claimants are awarded one bill of costs. As a result of the straightening of Montauk Highway and the removal of an S curve thereon, claimants were left with a narrow elliptical parcel about 600 feet long, narrow at both ends, and about 100 feet wide at its widest point. An application for rezoning from residential AA to business 1, made prior to the taking, had not been acted upon, assertedly because of the imminent condemnation. Claimants’ experts demonstrated to the court’s satisfaction that if two homes were to be constructed on this parcel, they would be unmarketable, and that its highest and best use was for business purposes. The town’s expert found no possibility of rezoning, and restricted his value to residential purposes only. The court correctly found that just compensation, as mandated by the New York State Constitution (art I, § 7), requires that an increment above residential value be added to the taking damage, because claimants had been deprived of the reasonable use of their property, as well as its unique shape. Accordingly, since there was evidence adduced to support the court’s evaluation, and it has been adequately explained, the order dated September 8, 1977, must be affirmed insofar as reviewed. Latham, J. P., Gulotta and Shapiro, JJ., concur.