
    Joseph Nunes et al., Respondents-Appellants, v State of New York, Appellant-Respondent.
    Decided May 10, 1983
    
      APPEARANCES OF COUNSEL
    
      Robert Abrams, Attorney-General (Dennis Hurley of counsel), for appellant-respondent.
    
      Joseph C. Shapiro and Henry B. Whitbeck for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing so much of the order as modified the judgment of the Court of Claims and awarded claimant $45,150, and the case remitted to the Appellate Division for further proceedings in accordance with this memorandum, and, as so modified, affirmed. The cross appeal by claimants should be dismissed upon the grounds that the claimants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and the dissent at the Appellate Division is not on a question of law in favor of claimants (CPLR 5601, subd [a], par [i]).

The Court of Claims erroneously failed to give any consideration to evidence of damages contained in an appraisal used by the State to obtain Federal highway funding, known as the Pomeroy appraisal, which figure was received in evidence. The Court of Claims explained its initial failure to consider this evidence as oversight caused by the sealing of its offices and resultant loss of access to its files due to chemical contamination. Nevertheless, upon claimants’ motion to vacate that court’s decision or for a new trial, the court refused to consider the figure as evidence of value despite admitting its initial oversight. The court merely stated that in any event this estimate supported its earlier conclusion. The Appellate Division therefore properly denied the State’s motion to dismiss the claim and granted the cross motion to vacate the earlier decision of the Court of Claims.

However, the Appellate Division improperly awarded claimants $45,150. The Pomeroy appraisal was neither marked as an exhibit nor received in evidence. The value stated in it was received solely as an admission. Consideration of the appraisal by the Appellate Division thus constituted error (see Kirby v Mafox Realty Corp., 272 App Div 889) and the matter should be remitted to the Appellate Division for further proceedings.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to the State of New York, and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed. Cross appeal by claimants dismissed, without costs, upon the grounds that claimants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and the dissent at the Appellate Division is not on a question of law in favor of claimants (CPLR 5601, subd [a], par [i]).  