DSS Enterprises, Inc. v. State

162 A.D.2d 1027, 557 N.Y.S.2d 811, 1990 N.Y. App. Div. LEXIS 9807

Opinion

Judgment unanimously affirmed with costs. Memorandum: Claimant alleged that, during the reconstruction of Edward Street in the City of Buffalo, the State changed the grade of the street and sidewalk, causing damage to his retail and office building. The Court of Claims correctly determined that the State was liable for the change of grade pursuant to section 364 of the Charter of the City of Buffalo (see, 240 Scott v State of New York, 18 NY2d 299). The court also properly concluded that the three-year time period set forth in Highway Law § 30 (14) applied to the filing of this claim (see, Reifke v State of New York, 31 AD2d 67, affd 26 NY2d 859). There is no merit to the State’s contention that the claim should have been dismissed because claimant failed to prove that the State was negligent. Claimant alleged and proved that the State caused the grade change and that claimant suffered damage in the manner alleged in the claim, thereby demonstrating its entitlement to compensation (see, Highway Law § 30 [14]). (Appeal from judgment of Court of Claims, McMahon, J.—negligence.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.