Brooks v. State

340 N.E.2d 472, 37 N.Y.2d 849, 378 N.Y.S.2d 38, 1975 N.Y. LEXIS 2231

Opinions

Memorandum. The Appellate Division’s order of modification which reduced the condemnation award by the amount of consequential damages attributed to the diminution in value of the main restaurant building should be reversed. Since the award of consequential damages to the underlying land and the restaurant building was implicitly based on the same diminution of business, it was error for the Appellate Division to affirm consequential damages as to the former but not as to the latter. The State’s argument that the take-out portion of the restaurant was separable from the eat-in portion involves a divisibility which defies the reality of the situation.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted for a determination of consequential damages.