Hunt v. State , 155 A.D.2d 920 ( 1989 )

— Judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Claimant appeals from a judgment which awarded him $7,959.37 as just compensation for the State’s 1979 appropriation of a portion of his property. The court found the difference in the before and after land value at $22,301.50 but reduced this amount by $14,342.13 which claimant received in 1974 as damages from the State for the taking of a temporary easement on the property. Claimant argues that the court should not have used the prior award as a setoff. We agree.

The temporary easement was terminated on January 23, 1976. Between this time and the taking in fee on August 27, 1979 claimant possessed exclusive right to the entire property and assumed all the burdens of full ownership including the payment of taxes, insurance, maintenance and snow removal. Had claimant sold the property during this period the new owner would have been entitled to the full measure of damages for the taking. The 1979 taking in fee was independent of and unrelated to the 1974 easement. Thus, the prior award for the 1974 easement did not impact on the before value of the property for purposes of computing damages for the State’s 1979 taking in fee. Accordingly, claimant is entitled to the full amount of damages ($22,301.50) as computed by the court. (Appeal from judgment of Court of Claims, McMahon, J.— appropriation.) Present — Denman, J. P., Green, Pine, Balio and Lawton, JJ.