Dumala v. State

• Decision Date: 16 January 1973
• Docket Number: No. 51751,51751
• Citation: 72 Misc.2d 687,340 N.Y.S.2d 515
• Parties: Wallace DUMALA, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 515

340 N.Y.S.2d 515

72 Misc.2d 687

Wallace DUMALA, Claimant, v. The STATE of New York, Defendant.

Claim No. 51751.

Court of Claims of New York.

Jan. 16, 1973.

[72 Misc.2d 688] Exenfeld, Webb, Marshall, Bersani & Scolaro, Syracuse (Donald A. Marshall, Syracuse, of counsel), for claimant.

Louis J. Lefkowitz, Atty. Gen. (Stanley V. Scott, Asst. Atty. Gen., of counsel), for the State.

DECISION

ALEXANDER DEL GIORNO, Judge.

Jurisdictionally, the above entitled proceeding comes before me as a Referee of this Court to hear, try and determine the claim herein by consent and agreement of the parties hereto and pursuant to an order of this Court dated April 10, 1972.

I find and decide as hereinafter set forth.

This is a claim for damages arising from an alleged de facto appropriation of part of claimant's property and an alleged loss of suitable access caused by a change of grade and construction of curbing and a center mall.

The de facto appropriation arose from the construction by the State of a fence allegedly on claimant's property. The fence was completed sometime between November 7, 1969 and January 4, 1970. The parties stipulated that damages were to be assessed as of October 1, 1969 and that the interest on any award granted herein was to be computed from October 1, 1969.

The original claim was filed with the Clerk of the Court of Claims on November 10, 1969 and with the Attorney General on November 7, 1969. Pursuant to an order of Judge John Carroll Young of this Court dated July 21, 1970, claimant was granted permission to file an amended claim. The amended claim was filed with the Clerk of the Court of Claims and with the Attorney General on August 3, 1970.

The contract under which the subject project was completed was accepted by the Commissioner of Transportation on April 23, 1971 (Claimant's Exhibit 8). Although the claim was filed before the acceptance of the contract under Highway Law § 30(15), such procedure is proper, Reifke v. State, 31 A.D.2d 67, 296 N.Y.S.2d 667 (4th Dept., 1968), aff'd 26 N.Y.2d 859, 309 N.Y.S.2d 601, 258 N.E.2d 96 (1970), and thus I find that the claim was timely filed.

The claim has not been assigned or submitted to any other court or tribunal for audit or determination.

Claimant was owner of the subject property by reason of a deed marked Claimant's Exhibit 6 in evidence.

Prior to the alleged de facto appropriation the subject property consisted of 10,521 sq. ft. on the northeast corner of Erie Boulevard East (a/k/a Route 5) and Thompson Street (a/k/a Relocated Thompson Road) in the Village of East Syracuse, Town of DeWitt, Onondaga County. Subject had 83.20 feet of frontage on Erie Boulevard East and 113.18 feet on Thompson Street. However, a strip 7 to 10 feet wide along the entire Thompson Street frontage and 10 feet along the eastern end of the Erie Boulevard East frontage were subject to a perpetual easement in favor of the State of New York for the purpose of constructing, reconstructing and maintaining embankments (See Claimant's Exhibit 7). This easement was imposed over 37 years prior to the instant alleged de facto appropriation. The easement strip contained 871 sq. ft., but did not interfere with subject's access to Thompson Street or Erie Boulevard East.

The subject land sloped gradually down from Erie Boulevard East and was approximately five feet below grade at subject's northern boundary. The property was improved by a one-story restaurant surrounded by a Tarvia parking area. A sketch of the subject property is annexed hereto and marked Appendix 'A'. ¹

Erie Boulevard East is a major artery running generally east out of the City of Syracuse. In the vicinity of subject the property along Erie Boulevard East is highly commercialized with very little land available for future commercial development. Thompson Road (a/k/a New Thompson Road, a/k/a Thompson Road Viaduct), intersects Erie Boulevard East approximately 165 feet west of subject and is a heavily travelled road carrying traffic north out of Syracuse. The intersection of Thompson Road and Erie Boulevard East has a traffic light and is one of the highest traffic volume intersections in Onondaga County.

The Town of DeWitt has shown rapid growth in population (27% From 1960 to 1970) and property values (assessed valuation of real property increased 64% From 1961 to 1969) and such growth should continue into the foreseeable future.

The alleged de facto appropriation arose in connection with the construction of an interchange for Interstate Route 690. Prior to the construction, subject was at grade with both Thompson Street and Erie Boulevard East and had completely unrestricted access to both roads, there being no curbing on either road contiguous to subject. Patrons of claimant's restaurant parked against the north, west and south sides of the building. A center divider separated east and westbound traffic on Erie Boulevard East, but a cut in the divider almost in front of claimant's building permitted eastbound traffic to turn left into Thompson Street and into the subject.

The new interchange was a four quadrant cloverleaf with collector roads and was located just northwest of subject where Thompson Road was rebuilt over Interstate 690. Both Thompson Road and Erie Boulevard East were improved and widened in the vicinity of subject. Thompson Street was closed and plowed under. The grade of Erie Boulevard East adjacent to subject was raised one to two feet and curbing was installed along subject's entire Erie Boulevard East frontage. However, pursuant to a release signed by claimant (State's Exhibit DD), the State constructed a 35 foot wide curb cut and driveway access for subject. ² The center divider on Erie Boulevard East was rebuilt into an expanded and continuous center mall, with the cut which had permitted eastbound traffic to turn left into Thompson Street and subject being eliminated. As a result, eastbound travellers had to go over a third of a mile past subject, make a U-turn, and enter subject from the westbound lanes of Erie Boulevard East. Finally, in order to segregate subject from the State's right of way, a six foot high chain link fence was constructed along subject's western boundary adjacent to the former Thompson Street.

Claimant claimed direct damages from a de facto appropriation arising from the alleged fact that the fence built along the former Thompson Street boundary was up to 1.14 feet inside the subject property (Claimant's Exhibit 13). The State claimed that the fence was not on subject but rather was wholly within the State's right of way. The burden of showing such an appropriation is on the claimant, Meloon Foundry v. State, 8 Misc.2d 286, 166 N.Y.S.2d 586 (Ct. of Claims, Major, J., 1957), rev'd other grounds 6 A.D.2d 993, 176 N.Y.S.2d 452 (4th Dept., 1958), but, after reviewing the evidence, as clarified by my viewing of the property, and after giving proper consideration to the testimony of the experts for both sides, particularly as to the methods and bases upon which the respective parties prepared their surveys, I find that the fence did impinge on the subject property as contended by claimant thereby resulting in a de facto appropriation of 117 sq. ft. of the land subject to the New York State perpetual embankment easement (Claimant's Exhibit 13).

Claimant claimed consequential damages from loss of access (including, apparently loss of exposure to traffic due to diversion of traffic) and loss of parking space. He contended that the closing of Thompson Street and the construction of the fence adjacent thereto, and the change of grade, installation of the curbing and closing of the cut in the median divider on Erie Boulevard East resulted in a loss of access to subject and that the fence, change of grade and curbing resulted in a loss of parking space on subject.

From an analysis of all the evidence I find that claimant did not suffer compensable loss of access since suitable access remained. The 35 foot curb cut easily provided suitable entry into and exit out of subject in its use as a roadside restaurant. It is true that cars entering subject will have to do so more slowly and make their turns more carefully than before the taking, but I deem such slight inconveniences too insignificant to make the access unsuitable for the subject's highest and best use.

The street closing, fence construction, curb installation and divider improvement were all species of reasonable regulation of traffic under the state's police power and since suitable access was left, any damage resulting therefrom was non-compensable. Jones Beach Boulevard Estate, Inc. v. Moses, 268 N.Y. 362, 197 N.E. 313 (1935), Jablowsky v. State, 267 App.Div. 54, 44 N.Y.S.2d 549 (3rd Dept., 1943), aff'd 292 N.Y. 652, 55 N.E.2d 517 (1944), Matter of Smith v. Gagliardi, 2 Misc.2d 1005, 148 N.Y.S.2d 758 (Sup.Ct., Westchester, 1955), aff'd 2 A.D.2d 698, 153 N.Y.S.2d 591 (2nd Dept., 1956), Cities Service Oil Co. v. City of New York,5 N.Y.2d 110, 180 N.Y.S.2d 769, 154 N.E.2d 814 (1958), cert. den'd 360 U.S. 934, 79 S.Ct. 1453, 3 L.Ed.2d 1546 (1959), Northern Lights Center v. State, 20 A.D.2d 415, 247 N.Y.S.2d 333 (4th Dept., 1964), aff'd 15 N.Y.2d 688, 256 N.Y.S.2d 134, 204 N.E.2d 333 (1965), cert. den'd 382 U.S. 826, 86 S.Ct. 60, 15 L.Ed.2d 71 (1965), Bopp v. State, 19 N.Y.2d 368, 280 N.Y.S.2d 135, 227 N.E.2d 37 (1967), Tucci v. State, 28 A.D.2d 774, 280 N.Y.S.2d 789 (3rd Dept., 1967), aff'd 29 N.Y.2d 836, 327 N.Y.S.2d 851, 277 N.E.2d 784 (1971). Claimant is entitled only to suitable access, not to access along his property's entire frontage or access to every street which borders his property. Kings County Fire Ins. Co. v. Stevens, 101 N.Y. 411, 5 N.E. 353 (1886), Tucci v. State, Supra. The impairment and reduction of access make entry and egress inconvenient or even difficult and may cause the property to be less desirable and to depreciate in value, but under the laws of this state...