Tucci v. State, 40955
| Decision Date | 20 June 1967 |
| Docket Number | No. 40955,40955 |
| Citation | 28 A.D.2d 774,280 N.Y.S.2d 789 |
| Parties | Armando TUCCI et al., Respondents-Appellants, v. STATE of New York, Appellant-Respondent. Claim |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Joshua J. Effron, Albany, for appellant-respondent.
Louis Weiner, Port Chester, for respondents-appellants.
Before GIBSON, P.J., and HERLIHY, AULISI, STALEY and GABRIELLI, JJ.
Cross appeals from a judgment of the Court of Claims which made an award to the claimants for consequential damage to their property.
Claimants, Tucci and Terenzi, are the owners of two adjacent lots, each having a frontage of 50 feet on Grant Street in the Town of Rye, Westchester County, and having a depth of 136.8 feet. On this plot they operated a part time business of manufacturing, displaying, and selling cemetery memorial stones.
The construction of a portion of the County Westchester Expressway necessitated the appropriation of a portion of Grant Street which resulted in transversing it. At the easterly boundary of the expressway appropriation at Grant Street, a chain link type fence was erected which was extended along the westerly boundary of claimants' parcel. At some distance easterly of this fence, there was erected a wooden barrier across the width of Grant Street to warn the traveling public that Grant Street dead-ended at this point. After the erection of the wooden barrier, claimants' frontage on Grant Street was reduced to 44 feet of frontage. Within this frontage of 44 feet, claimants had two curb cuts. The entire frontage of the westerly lot was destroyed along with an additional six feet of the easterly lot. There was no direct taking by the State of any part of claimants' land.
Claimants contend that the closing of 56 feet of feet of frontage of Grant Street by the erection of the barrier resulted in a De facto appropriation of claimants' fee and easement in, to and over Grant Street. Claimants obtained title to the plot through a tax deed from the Town of Rye in 1949. There is no evidence in the record to the effect that claimants had title to any portion to Grant Street which the Trial Court found to be a public street.
The Trial Court based its award on the ground that claimants' free use of this property was interfered with by the State by virtue of the manner in which the State erected the permanent barrier, which the court found could have been erected at right angles to and at the end of claimants' property instead of at the sharp diagonal angle at which it was erected.
The State, in the exercise of its police power, has the right to control traffic and public travel on public highways even though abutting owners may be adversely affected. (Jones Beach Boulevard Estate, Inc. v. Moses, 268 N.Y. 362, 197 N.E. 313, 100 A.L.R. 487; Segal v. Village of Scarsdale, 17 Misc.2d 27, 184 N.Y.S.2d 547.) If the State, acting under its authority, closes a street or a part thereof, it must leave to an abutting owner a means of suitable access, or else the owner must be compensated. (Selig v. State of New York, 10 N.Y.2d 34, 217 N.Y.S.2d 33, 176 N.E.2d 59; Holmes v. State of New York, 279 App.Div. 489, 111...
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