Red Apple Rest., Inc. v. State
| Decision Date | 15 May 1967 |
| Docket Number | No. 39675,39675 |
| Citation | 280 N.Y.S.2d 229,27 A.D.2d 417 |
| Parties | RED APPLE REST., INC., Appellant, v. STATE of New York, Respondent. Claim |
| Court | New York Supreme Court — Appellate Division |
David Marcus and William S. Gray, New York City, for claimant-appellant.
Louis J. Lefkowitz, Atty. Gen., of State of New York , for respondent.
Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI, and STALEY, JJ.
This is an appeal by claimant from a judgment of the Court of Claims entered April 18, 1966.
The claimant, a domestic corporation, owns and operates a restaurant situate on the easterly side of Route 17 in the Town of Tuxedo. This parcel has a frontage on Route 17 of approximately 262 feet, and the areas around the restaurant building are paved for parking. The claimant also owns a parcel on the westerly side of Route 17, opposite the restaurant, which is used for parking and other purposes in conjunction with the restaurant. This parcel has a frontage of approximately 215 feet on Route 17. The claimant also owns another parcel on the easterly side of Route 17 about 350 feet north of the restaurant parcel.
For purposes of identification, these parcels were designated 'A', 'B', and 'C' respectively. On October 9, 1959, the State, pursuant to section 30 of the Highway Law, appropriated a portion of claimant's land in Parcel 'B' and another portion in Parcel 'C'. After the appropriation, the State erected approximately 174 feet of guardrail along the easterly side of Route 17 parallel to the westerly boundary of Parcel 'A' leaving an opening for ingress and egress of about 76 feet, the southerly end of the opening being about opposite the northerly wall of the restaurant building. The State also erected a guardrail 155 feet in length on the westerly side of Route 17 in front of Parcel 'B' leaving an opening at the northerly end of 43 feet, and at the southerly end of 14 feet for ingress and egress.
The decision of the Court of Claims, reflected in the judgment entered herein, awarded the claimant the sum of $718 for the appropriation in Parcel 'B' and the sum of $936.70 for the appropriation in Parcel 'C'. The court found no consequential damage to the remaining property of the claimant.
The claimant contends that the court erred in holding that the access remaining to Parcels 'A' and 'B' was suitable after the appropriations and erection of the guardrails, and should not have considered the access to claimant's lands over the lands of adjoining owners in determining suitability of access.
In support of its contention, the claimant asserts that, prior to the appropriations and the erection of the guardrails, cars and buses could and did pull in and out of its premises at gradual angles anywhere along the frontage of its premises, and that since the erection of the guardrails, these vehicles must make 90 degree turns to enter the parking areas. Claimant further asserts that this is a difficult and dangerous maneuver.
In a prior case, Red Apple Rest v. McMorran, 12 N.Y.2d 203, 206, 237 N.Y.S.2d 707, 708, 188 N.E.2d 137, 138, the Court of Appeals stated: . The question of whether claimant was or was not entitled to any consequential damages by reason of the limitation of access was not before the court in that case, since no damages were sought.
In the instant case, we are not concerned with total deprivation of access, nor with circuity of access, but solely with impaired access. Consequential damages have been allowed where impaired access has been deemed unsuitable. (Holmes v. State of New York, 279 App.Div. 489, 111 N.Y.S.2d 634; Meloon Bronze Foundry v. State of New York, 18 Misc.2d 403, 405, 191 N.Y.S.2d 3, 5, mod. 10 A.D.2d 905, 200 N.Y.S.2d 563.) In these cases, however, the altered access actually deprived the premises of sufficient access for the use...
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