On these cross-appeals, three basic questions are presented for our review, to wit: did claimant satisfy its burden of proof that, absent the appropriation, there was a reasonable probability of its being granted a special exception use permit to construct a gasoline station on the site; was this use as a gasoline station affected by a deed restrictive agreement between claimant and its neighbors; and was the trial court’s valuation of the parcel proper. Examining initially the special exception use permit issue, we note that, if it can be established as reasonably probable that an asserted highest and best use could have been made of a property in the near future, a trial court may find this was the highest and best use of the land for valuation purposes
(Matter of City of New York [Shorefront High School—Rudnick], 25 NY2d 146 ). Moreover, the appraisers for both parties herein agreed that the subject property was to be considered as zoned so as to make its use as a gas station site contingent upon the issuance to claimant by the City of Yonkers of a special exception use permit. Such being the case, it was claimant’s burden to establish the reasonable probability that it would'have been issued such a permit had there been no appropriation. An examination of the record leads us to conclude that the claimant has carried this burden. Accordingly, the trial court, in evaluating the parcel, could properly consider the reasonable probability that a special exception use permit would have been issued. As for the deed restrictive agreement between claimant and its neighbors, this does not defeat the proposed gasoline station use. While claimant agreed, pursuant to the covenant, not to construct a gasoline station on part of the tract, the area affected was only a small portion of the realty involved, and sufficient unencumbered land remained available for use as a gasoline station. Turning finally to the trial court’s valuation of the property we find that it cannot be sustained. The appraisers for the parties differed as to the highest and best use of the parcel before the taking with claimant’s expert suggesting use as a gasoline station and a before value of $349,000 and the State’s expert suggesting use for commercial purposes and a before value of $170,850. As a result, no range of values was provided as to this component of the ultimate award, and, when the court adopted claimant’s suggested use as a gasoline station, it should properly have explained the substantial variation between its before value of $261,-870 and that of claimant’s expert
(Camp Bel-Aire v State of New York, 34 AD2d 867 ). No explanation was given, however, and there must consequently be a new trial limited to the issue of damages (cf.
Banks v State of New York, 56 AD2d 972 ). Judgment modified, on the law and the facts, by reversing so much thereof as awarded claimant damages of $100,520 and a new trial limited to the issue of damages ordered, and, as so modified, affirmed, without costs. Koreman, P. J., Greenblott, Sweeney, Main and Herlihy, JJ., concur.