Selig v. State

• Decision Date: 25 May 1961
• Docket Number: No. 34263,34263
• Parties: , 176 N.E.2d 59 Martha SELIG, Respondent, v. STATE of New York, Appellant. (Claim) Court of Appeals of New York
• Court: New York Court of Appeals Court of Appeals

Page 33

217 N.Y.S.2d 33

10 N.Y.2d 34, 176 N.E.2d 59

Martha SELIG, Respondent, v. STATE of New York, Appellant.

(Claim No. 34263.) Court of Appeals of New York.

May 25, 1961.

Louis J. Lefkowitz, Atty. Gen. (Julius L. Sackman and Paxton Blair, Albany, of counsel), for appellant.

Ulysses S. Adler, Alan B. Adler and Frederick J. Adler, Yonkers, for respondent.

FROESSEL, Judge.

The Court of Claims has awarded claimant $40,000 with interest in full settlement of her claim for alleged damages to her real property, as a result of the construction in the center of former Central Park Avenue, Yonkers, of a portion of the New York Thruway. The Appellate Division has unanimously affirmed.

Claimant's property, consisting of approximately 8 acres, is situated on the west side of Central Park Avenue, about halfway between Yonkers Avenue on the north and McLean Avenue on the south. The property has a frontage of 155 feet on Central Park Avenue, and is bounded by Midland Terrace on the north and St. John's Avenue on the west, which avenue describes an arc and runs into Central Park Avenue near the irregular southern boundary of the property. Claimant's property is improved with a taxpayer containing 4 stores on the Central Park Avenue frontage, a group of garage buildings for housing tenants' automobiles, and 10 buildings containing 174 apartments.

Prior to July 12, 1954, at which time construction of the Southern Westchester Connection of the New York Thruway, Hudson Section, in, upon or over Central Park Avenue, was begun, that avenue was a public street 100 feet wide, and a main artery of travel from New York City through Westchester County. At that time, Central Park Avenue crossed McLean and Yonkers Avenues at the same grade and level.

Construction of the Thruway was finished on February 18, 1957. As a result of the construction, the center portion of Central Park Avenue which became the Thruway was higher in some places and lower in others than the original grade of the street. The roadway was depressed so that it presently passes under McLean and Yonkers Avenues, and was elevated to a height of about 6 1/2 to 11 feet directly opposite claimant's property. In addition, there is a retaining wall extending approximately 3 feet above the new roadway opposite claimant's property.

The center portion of the Thruway is a limited-access highway, and it is no longer possible to cross from the east side of Central Park Avenue directly to claimant's property. On each said of the Thruway, however, there are service roads. Central Park Avenue South is a service road for southbound traffic, about 27 feet wide, upon which claimant's property abuts. On the east side of the Thruway is another service road, Central Park Avenue North, for northbound traffic.

Vehicles traveling north on Central Park Avenue no longer have direct access to claimant's property, but must use the service road on east side of the Thruway and cross over at Yonkers Avenue about 10 blocks north of claimant's property, or at McLean Avenue about 8 blocks to the south of it. In addition to these two cross streets, there is a pedestrian overpass at Clark Street, about 7 blocks north of claimant's property.

Claimant bases her claim on the construction and the resulting 'change of the grade and the interference with the ingress, egress, access, light and air to the portions of the property'. ^* No claim is made for change of grade to the street (Central Park Avenue South) immediately adjacent to her property which concededly remained at grade. No part of claimant's property, nor any interest therein, was appropriated, used or occupied for purposes of the Thruway construction, and no such claim is made.

The statutory basis for the claim is subdivision 14 of section 347 of the Highway Law, Consol.Laws, c. 25, which provides, as applicable: 'If the work of constructing, reconstructing and maintaining such state thruways and bridges thereon causes damage to property not acquired as above provided, the state shall be liable therefor, but this provision shall not be deemed to create any liability not already existing by statute.' (Emphasis supplied.)

The pre-existing statutory liability referred to in subdivision 14 of section 347 of the Highway Law is found in section 99 of the Second Class Cities Law, Consol.Laws, c. 53, which law is applicable to the City of Yonkers, and provides: 'The grade of any street shall not be fixed or established except by direction of the common council. The grade of a street heretofore or hereafter legally established shall not be changed, except by direction of the common council, and except also upon compensation for damages done, to be ascertained in and by the proceedings provided by law for ascertaining damages for lands taken for the opening of streets.'

This section would, therefore, have imposed liability upon the city had it undertaken the construction and thereby damaged claimant, if there were a change of grade. Since the alteration was made by the State, however, section 347 charges it with the liability for any such damage to abutting property owner. See Mirro v. State of New York, 260 App.Div. 525, 23 N.Y.S.2d 852, affirmed 285 N.Y. 678, 34 N.E.2d 378.

Appellant's principal contention is that, since claimant was not deprived of access to and egress from her property, the courts below improperly based the award on circuity of access and diversion of traffic in their determination of the consequential damages. Appellant submits that, therefore, the decision of the Appellate Division is contrary to the law of this State.

It has long been the rule in this State that consequential damages may not be recovered by an abutting property owner for the diminution in value of his property because the State, in changing the course of an adjoining highway, interferes with the access to his land or diverts traffic therefrom. Damages resulting merely from circuity of access are considered as damnum absque injuria. McHale v. State of New York, 278 App.Div. 886, 104 N.Y.S.2d 981, affirmed 304 N.Y. 674, 107 N.E.2d 593; Van Aken v. State of New York, 261 N.Y. 360, 362-363, 185 N.E. 497, 498; Coffey v. State of New York, 291 N.Y. 494, 498-499, 53 N.E.2d 362, 364-365. To be compensable, the damages must be the direct result of a change in grade. Hall & McChesney v. State of New York, 15 Misc.2d 748, 182 N.Y.S.2d 560, affirmed 11 A.D.2d 899, 205 N.Y.S.2d 1023, motion for leave to appeal denied 8 N.Y.2d 710, 208 N.Y.S.2d 1025; Buro v. State of New York, 281 App.Div. 61, 118 N.Y.S.2d 308, affirmed 306 N.Y. 730, 117 N.E.2d 909; Nettleton Co. v. State of New York, 11 A.D.2d 899, 202 N.Y.S.2d 102.

In Hall & McChesney v. State of New York (supra), a factually similar case, claimant's property located in Syracuse fronted on Oswego Boulevard on the east, Court Street on the north, and North Clinton Street on the west. Oswego Boulevard was a very heavily travelled street, thus making claimant's property best suited for retail and office purposes. After reconstruction, Oswego Boulevard became a limitedaccess, divided, depressed highway with ramps, separated from claimant's property by a 32-foot service road. The service road was constructed at grade with claimant's property. Claimant's property was still left with the same access on the north and west. In addition to compensation for the actual strip of property taken, claimant sought an award for consequential damages for loss of value of its remaining unappropriated property, the best use of which was now industrial.

The court, after noting that claimant still had access on the three sides, stated (15 Misc.2d at page 751, 182 N.Y.S.2d 563):

'The only change was that access on the east instead of being from a heavily traveled main artery was now from a 32-foot street which did not have the physical capacity for the volume of traffic carried on the street which previously abutted claimant's property. Instead, that heavy volume of traffic will...