I agree with Justice Heblihy’s dissent as to reversal of the tenant’s judgment and dismissal of his claim (No. 39972) for the reasons he assigns and additional reasons in this memorandum. As to the fee owners’ judgment, (Claim No. 40099) it is my opinion that this judgment should be reduced to $559,000 or reversed and a new trial granted.
A short time before the vesting of title in the State (May 10, 1961), the fee owners completed the assemblage of the parcel of 26.783 acres out of which the appropriated parcel of 16.009 acres was talcen. This vacant unimproved land cost the fee owners $247,800 or about $9,250 per acre. The court’s valuation of this land, upon which no physical changes had taken place, of $84,053 per acre as of May 10, 1961 (the date when it must be evaluated) is shocking. It was more than nine times what the fee owners paid for the land only a short time before. It represents an escalation in value of this parcel of more than 900% from $247,800 to $2,251,191. Judge Fuld’s opinion in Levin v. State of New York (13 N Y 2d 87) sanctioned the receipt into evidence of a lease, the prospective net rental income, the plans to develop the subject property and the evidence relating to construction costs, to be considered as a factor along with market value and other data in determining enhancement. In other words that it was admissible as some evidence of value but could not serve as the sole basis of the award as was attempted here. (Cf. Levitin v. State of New York, 12 A D 2d 6, mot. for rearg. den. 13 A D 2d 611; Salzberg v. State of New York, 24 A D 2d 664, affd. 18 N Y 2d 965; Karell Realty Corp. v. State of New York, 30 A D 2d 897; City of Binghamton v. Rosefsky, 29 A D 2d 820; Wer Realty v. State of New York, 26 A D 2d 732.)
In my view the only evidence which is sensible and practical as to the fee owners’ claim and followed the decisional law, was that of the State’s appraiser. He recognized that the subject assembled parcel had plottage value in excess of the $247,800 cost for a higher potential use, and in consideration of the market value data, sales data and rent data testified that the parcel had a value of $400,000 on the market value approach. However, he took into consideration the headlease, supported by the sublease to Korvette and arrived at a figure of $680,000 as the unencumbered fee value. This represented a substantial enhancement over the figure of $400,000 obtained by the market value approach and nearly one half million over the cost price. It seems to me to be a rather handsome enhancement, all in compliance with the rule enunciated by the Court of Appeals in Levin v. State of New York (supra). Reducing this $680,000 by the after value found *230by the trial court $121,000, it becomes $559,000 which is the State’s contention of the proper figure for this claim. I agree.
It seems necessary to discuss another error and that is the use by the trial court of the capitalization rate of 7%. The State contends that this is unfounded and arbitrary, with which I must agree. The trial court reaches this as between the claimant’s contention of a 6% capitalization rate and that of 9% by the State’s appraiser. Claimants defend the court’s use of a 7% rate as within the range of the expert testimony and that the selection of the capitalization is a question of fact, citing St. Agnes Cemetery v. State of New York (3 N Y 2d 37, 47). That is all well and good, but here the testimony of the claimants’ expert as to the proper capitalization rate is entitled to no weight, because his opinion is wholly conclusory, subjective and based only on his judgment and without factual support; therefore, there is no question of fact for the court to decide and no range of testimony. The State’s expert chose his rate on the basis of a comparable lease and verified that rate using the “ component rate method ” in which the appraiser sets up component parts of the capitalization rate to reflect the various qualities of investment, assigns a rate to each and sums them up to arrive at the proper rate. It was the only rate based on factual support. We have held that the opinion of an expert as to ultimate value, without factual support and based wholly on his experience, is totally devoid of probative force and cannot be used to sustain an award (Fonda, Johnstown & Gloversville R. R. Co. v. State of New York, 29 A D 2d 240). We have applied the same rule to an expert’s opinion as to highest and best use (O. & W. Lines v. State of New York, 30 A D 2d 998). And, perhaps, more closely in point is our decision in Fleetwood Maple Corp. v. State of New York (28 A D 2d 1026). In that case claimant’s expert testified as to value, and stated he used the income approach; but, when asked to explain how he arrived at his opinion, merely replied '‘ I did it in my head. ” We held this testimony to be a ‘ ‘ conclusory ultimate valuation ’ ’ and insufficient to sustain an award. (Cf., 1 Orgel, Valuation under Eminent Domain [2d ed.], § 185, p. 716) which cites Matter of City of New York [Seventh Ave.], 196 App. Div. 451), as indicating that “ opinion testimony as to proper rates of capitalization, unless well supported, will not suffice to ground a reversal of commissioners ’ awards. ’ ’
The need for factual support for the choice of a capitalization rate is well demonstrated here. Using a 6% capitalization rate, claimants’ expert computed the value of the lease at $859,000. *231The trial court used a 7% rate to reach a value of $823,610. The State’s appraiser, using a 9% rate, arrived at $680,000.
Even if we were to accord the opinion of claimants’ expert as to the proper capitalization rate some weight, the trial court’s choice of 7% is without factual support. Claimants ’ expert testified that the 6% rate represented the going rate of return on real estate investments where the income was secured by leases to tenants with a ‘ ‘ A-l ’ ’ rating. The testimony shows that the lease in question was subject to more than the usual risks. In the first place, the landlord’s reversionary interest was to be subordinated to a mortgage to be secured by the tenant. Secondly, the sublease to the “ A-l ” tenant, Korvette, was subject to cancellation on short notice if the tenant failed to complete the proposed buildings and other improvements on schedule. The only testimony as to the additional return investors would demand to compensate for the “ risk factor ” was given by the State’s witness, and he said it would increase the rate to 9%, and this was the only probative evidence as to the proper rate.
As to the tenant’s claim, in addition to the reasons set forth by Justice Hbrlihy, the lessee’s appraiser derived his value solely on the basis of the capitalization of the income from hypothetical structures. With sound factual support the State’s appraiser testified that the economic rent of the condemned site did not exceed the contract rent and, therefore, in accordance with this familiar rule, the tenant suffered no damage by the termination of its lease.
In sum, the tenant’s judgment should be reversed and his claim dismissed, and the judgment of the fee owner should be modified and reduced to the sum of $559,000 or, in the alternative, a new trial should be granted.
Staley, Jr., and Gabrielli, JJ., concur with Aulisi, J.; Herlihy, J. P., concurs in part and dissents in part, in an opinion; Reynolds, J., dissents, in an opinion.
Judgment in Claim No. 40099 affirmed, with costs.
Judgment in Claim No. 39972 modified, on the law and the facts, by reducing the award to $525,000 and, as so modified, affirmed, with costs.