Endwell Rug Co. v. State

Appellate Division of the Supreme Court of New York

Endwell Rug Co. v. State

23 A.D.2d 516, 256 N.Y.S.2d 218, 1965 N.Y. App. Div. LEXIS 5061

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 12, 1965

DocketClaim No. 39830

StatusPublished

This text of 23 A.D.2d 516 (Endwell Rug Co. v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Endwell Rug Co. v. State, 23 A.D.2d 516, 256 N.Y.S.2d 218, 1965 N.Y. App. Div. LEXIS 5061 (N.Y. Ct. App. 1965).

Pincite

Opinion

Per Curiam.

It is clear that the trial court’s award of $34,467.50 for consequential damages was based solely on its conclusion that “as a result of the improvement, the property is left without a reasonably suitable means of access for its highest and best available use ” and that the consequential damages found were solely for loss of such access. Neither the record nor the physical circumstances of the property itself support any finding of loss of suitable access within the meaning of the pertinent authorities. (See Selig v. State of New York, 10 N Y 2d 34; Northern Lights Shopping Center v. State of New York, 20 A D 2d 415, affd. 15 N Y 2d 688; Ball & McGhesney v. State of New York, 15 Mise 2d 748, affd. 11 A D 2d 899, mot. for iv. to opp. den. 8 N Y 2d 710; National Biscuit Co. v. State of New York,-12 A D 2d 998, mod. 14 A D 2d 729, cert. den. 370 17. S. 924; Nettleton Co. v. State of New York, 11 A D 2d 899; see, also, Nichols, Eminent Domain, § 14.2431, p. 595.) If the result is unjust in eases such as this, the remedy lies with the Legislature and not with the courts. Judgment modified, on the law and the facts, so as to reduce the award to $5,157.50, the direct damages found, with appropriate interest, and, as so modified, affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.

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Per Curiam.

It is clear that the trial court’s award of $34,467.50 for consequential damages was based solely on its conclusion that “as a result of the improvement, the property is left without a reasonably suitable means of access for its highest and best available use ” and that the consequential damages found were solely for loss of such access. Neither the record nor the physical circumstances of the property itself support any finding of loss of suitable access within the meaning of the pertinent authorities. (See Selig v. State of New York, 10 N Y 2d 34; Northern Lights Shopping Center v. State of New York, 20 A D 2d 415, affd. 15 N Y 2d 688; Ball & McGhesney v. State of New York, 15 Mise 2d 748, affd. 11 A D 2d 899, mot. for iv. to opp. den. 8 N Y 2d 710; National Biscuit Co. v. State of New York,-12 A D 2d 998, mod. 14 A D 2d 729, cert. den. 370 17. S. 924; Nettleton Co. v. State of New York, 11 A D 2d 899; see, also, Nichols, Eminent Domain, § 14.2431, p. 595.) If the result is unjust in eases such as this, the remedy lies with the Legislature and not with the courts. Judgment modified, on the law and the facts, so as to reduce the award to $5,157.50, the direct damages found, with appropriate interest, and, as so modified, affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.

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Bluebook (online)

23 A.D.2d 516, 256 N.Y.S.2d 218, 1965 N.Y. App. Div. LEXIS 5061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/endwell-rug-co-v-state-nyappdiv-1965.