Northern Lights Shopping Center, Inc. v. State

• Citation: 20 A.D.2d 415,247 N.Y.S.2d 333
• Decision Date: 27 February 1964
• Docket Number: Nos. 34798,36697,No. 36695,s. 34798,36695
• Parties: NORTHERN LIGHTS SHOPPING CENTER, INC., Respondent-Appellant, v. The STATE of New York, Appellant-Respondent. Claim(Two cases.) NORTH STAR REALTY CORPORATION, Respondent-Appellant, v. The STATE of New York, Appellant-Respondent. Claim
• Court: New York Supreme Court Appellate Division

Page 333

247 N.Y.S.2d 333

20 A.D.2d 415

NORTHERN LIGHTS SHOPPING CENTER, INC., Respondent-Appellant, v. The STATE of New York, Appellant-Respondent.

Claim Nos. 34798, 36697. (Two cases.)

NORTH STAR REALTY CORPORATION, Respondent-Appellant, v. The STATE of New York, Appellant-Respondent.

Claim No. 36695.

Supreme Court, Appellate Division, Fourth Department.

Feb. 27, 1964.

Louis J. Lefkowitz, Atty. Gen., Albany, for appellant-respondent State of New York (Julius L. Sackman, Paxton Blair, Albany, of counsel).

Driscoll, Mathews, Gingold & Cass, Syracuse, for respondents-appellants (Daniel F. Mathews, Sr., Francis D. McCurn and John F. Lawton, Syracuse, of counsel).

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HENRY and NOONAN, JJ.

GOLDMAN, Justice.

The State appeals in these condemnation proceedings from three judgments of the Court of Claims principally on the ground that any damage sustained by claimants as a result of loss of access is damnum absque injuria. The claimants cross-appeal on the ground of inadequacy resulting from the denial of additional consequential damages for alleged loss of visibility. The State does not dispute the direct damages portion of the awards (except for claim No. 36695 with which we shall deal later) and we shall therefore concern ourselves with the sole question of the awards for consequential damages.

The appropriations were necessitated by the construction of Interstate Highway Route 81 near a shopping center site in the Town of Salina about five miles north of Syracuse. The claimant Northern Lights Shopping Center, Inc. (hereinafter referred to as Northern Lights) was owner of the center which was founded by one Porter, a shopping center developer, and the claimant North Star Realty Corp. (hereinafter referred to as North Star), which was actually an adjunct of Northern Lights, was subsequently incorporated in April of 1955. The latter was thereafter, but prior to the second appropriation, the grantee of portions of the original 42.5 acres of land owned by Northern Lights. It is well established by the evidence that by reason of interlocking directorates, identity of stockholders and officers, and reciprocal payment of obligations, these two corporations were in effect one entity. Although property was conveyed by Northern Lights to North Star during the interval between the two appropriations, all the property was used for the mutual benefit of both claimant corporations.

The history of the development and the physical layout of the center and the highways is most essential in the consideration of the substantial awards of $607,500 for consequential damages. At the time of the 1955 appropriation, the land was bounded on the north by Bear Trap Creek; on the east by Sand Road, a comparatively minor service road; on the south by Sand Road; and on the west by State Highway Route 11 and County Highway 208, with a frontage of approximately 1,734 feet. Route 11 was a well-travelled undivided two-lane highway, the principal northsouth road between Watertown and Binghamton. County Highway 208 formed a 'Y' intersection with Route 11 and was also a well-travelled undivided two-lane highway constituting the principal road between Syracuse and Oneida Lake. On a generally oblong plot of land, the owners constructed buildings along the northerly, easterly and southerly boundaries and also a parking area which extended from the buildings westward to the westerly boundary. Passing around the rear of the buildings was a 30-foot right of way, the subject of an agreement between the two corporations, which permitted common use of not only this right of way but also of all the means of access to the buildings.

There were five means of access to the center, the principal two being near the termini of the westerly boundary, the northerly entrance leading from County Highway 208 and the southerly entrance from Route 11. Each of these two served as both an entrance and an exit. There were also two means of access to and from Sand Road, a service road, and these two means of access consisted of driveways to and from the center leading to Sand Road which constituted a southerly boundary. The fifth means of access was a right of way leading to the rear of the property from Sand Road where it abutted the property on the east. This right of way did not become a road until 1960.

In June of 1953 Porter became interested in developing this large regional shopping center. He negotiated with the owner, obtained options on the property in the summer of 1953 and title passed on December 30, 1953. It is clear that as a result of discussions with engineers and other representatives of the State in late 1953 and early 1954, Porter and his architect were informed of the nature and extent of the proposed Interstate Highway 81, including the construction of a traffic circle. A rearrangement of traffic resulted from the overhead construction of Route 81 and the State constructed a traffic oval immediately opposite and west of the claimants' frontage. Southbound traffic from the north and east was fed into this oval. The traffic along Route 11 and County 208 passing in front of the center flowed one way in a northerly direction. Route 11 remained two-way south of Sand Road and County 208 remained two-way north of the shopping center.

Thereafter, Porter made application for a construction permit. Construction commenced on the buildings of Northern Lights in July 1954 and the entranceways were constructed in the summer of 1955 in accordance with the permit issued by the State. Before the Construction of the entranceways and in the spring of 1955, the State erected guardrails along its right of way on claimants' westerly frontage on Route 11 north of the south entranceway. Thereafter, the State filed appropriation maps resulting in the taking on August 23, 1955 of a one-foot strip of land 727 feet in length east of the guardrails and designated the taking as 'non-access'. The guardrails were constructed to prevent interference with the flowing traffic pattern. For purposes of traffic safety, the State created a 'weaving lane' on Route 11 and County 208 so as to facilitate the free flow of traffic from the time of entry until the time of departure. In 1958, the State widened the 'weaving lane' in front of the center and at that time reconstructed each entrance so that there was an island between entrance and exit. The record demonstrates that the claimants could have constructed larger entrances. By using the oval, traffic coming from the north of the center was led into the 'weaving lane' and could enter the center through the north entrance. Traffic did not need to use the oval but could proceed south to Sand Road or to the intersection south of Sand Road and by proceeding north on Route 11 and east on Sand Road could use the other entrances available.

The Court of Claims found that Sand Road was of no customer value, a finding contrary to the weight of the evidence. Although not equivalent in value or utility to the north and south means of access, the openings to Sand Road constitute reasonable ingress and egress. We do not agree with the finding that the 1955 appropriation as supplemented by the 1959 taking deprived claimants of suitable means of access.

The shopping center opened in November 1955. Porter testified that accidents occurred near the entranceways and contended that by reason of the takings the traffic pattern of the parking lot was disrupted. The evidence as to accidents is very meagre and contained no names of persons, dates of accidents or any facts relating to the accidents to explain the reasons for them and any finding based upon this testimony that the State had created a dangerous condition would be against the weight of evidence.

During the interval between the two appropriations, a guardrail was erected on the east side of County 208 from a point proximate to the north of the north entranceway to a point beyond the northerly property line of North Star's property. On April 21, 1959, the State widened the highway by appropriating in fee a strip which did not affect access. The southerly part of the strip was taken from Northern Lights and the northerly from North Star. The claimants argue that the guardrails constructed as the result of the 1959...