Cousin v. State, 50417
| Decision Date | 25 October 1973 |
| Docket Number | No. 50417,50417 |
| Citation | 42 A.D.2d 1016,348 N.Y.S.2d 253 |
| Parties | Thomas COUSIN et al., Respondents-Appellants, v. STATE of New York, Appellant-Respondent. Claim |
| Court | New York Supreme Court — Appellate Division |
Romano & Schenker, New York City (Anthony Romano, New York City, of counsel), for respondents-appellants.
Louis J. Lefkowitz, Atty. Gen. (Joseph F. Gibbons, Albany, of counsel), for appellant-respondent.
Before GREENBLOTT, J.P., and COOKE, SWEENEY, KANE and MAIN, JJ.
Cross appeals from a judgment, entered March 21, 1972, upon a decision of the Court of Claims.
This is an appropriation case involving property which, prior to the appropriation, consisted of 9,100 square feet, located on Flushing Avenue at the southwest corner of 55th Street in Maspeth, Queens. The property, irregular in shape, had two curb cuts along its frontage and two similar entrances on the 55th Street boundary and was improved with a three-bay, brick and concrete gasoline service station. The use of the subject property as a gasoline service station was consonant with its highest and best use prior to the appropriation.
The State appropriated approximately 320 square feet of the claimants' property, a triangular area extending 82.59 feet along the Flushing Avenue frontage to a maximum depth of 8.21 feet along the 55th Street boundary. A temporary easement, comprising 965 square feet and encompassing a land mass which included a 108 square foot concrete pump island, was also involved, with a duration of 43 months. After the taking, the shape of the subject property remained substantially the same, although one curb cut along 55th Street was removed.
As a result of this appropriation, the subject property no longer has frontage along Flushing Avenue, but adjoins a service road that converges with that avenue at approximately the middle of the property. Though it is physically possible for westbound traffic on Flushing Avenue to turn into the subject property at this point, the procedure is extremely dangerous since the visibility of vehicles moving along the service road is partially obscured. Eastbound traffic can no longer cross Flushing Avenue directly opposite the subject property, as there is an island dividing the property at this point.
The appropriation resulted in a change in the highest and best use of the subject property which was no longer consonant with a gasoline service station but cohered to light manufacturing or industrial. The principal issue which we must decide is whether this change is an item of compensable damage.
We hold that it is. The means of approaching the subject...
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