Board of Education of the City School District v. State

— Judgment unanimously affirmed, without costs. Memorandum: Claimant appeals from dismissal of its damage claim for appropriation of a temporary easement and demolition of the 99th Street school on the sole ground that the court erred in applying the de jure taking date of March 25, 1980, instead of an alleged de facto taking date of August 2, 1978, the date the New York State Health Commissioner declared a state of emergency at the Love Canal. This contention was raised for the first time on appeal and cannot be considered because the parties stipulated on the record to valuation as of March 25, 1980; that was the date alleged in the Board’s claim, and that was the date utilized by both appraisers (see, CPLR 5501 [a] [3]; Antonetti v City of Syracuse, 52 AD2d 742, 743, lv denied 39 NY2d 711). City of Buffalo v Clement Co. (28 NY2d 241), relied on by claimant, is not on point, since that case involved the issue of condemnation blight, which is not present here. (Appeal from judgment of Court of Claims, Moriarty, J. — appropriation.) Present — Doerr, J. P., Boomer, Green, Pine and Lawton, JJ.