Hylan Flying Service, Inc. v. State

New York Court of Appeals

Hylan Flying Service, Inc. v. State

404 N.E.2d 1326, 49 N.Y.2d 840, 427 N.Y.S.2d 785, 1980 N.Y. LEXIS 2206

CourtNew York Court of Appeals

DecidedMarch 20, 1980

DocketClaim 54734

StatusPublished

Cited by3 cases

This text of 404 N.E.2d 1326 (Hylan Flying Service, Inc. v. State) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hylan Flying Service, Inc. v. State, 404 N.E.2d 1326, 49 N.Y.2d 840, 427 N.Y.S.2d 785, 1980 N.Y. LEXIS 2206 (N.Y. 1980).

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Opinion

OPINION OF THE COURT

Memorandum.

The judgment appealed from should be affirmed, with costs. On this appeal taken pursuant to CPLR 5601 (subd [d]), we may review only the prior "non-final determination of the appellate division” upon which the appeal is predicated (CPLR 5501, subd [b]). Since the Appellate Division did not disturb the factual finding, made by the Court of Claims and based upon legally sufficient evidence, that the limited access to claimants’ property was not caused by the taking, that factual determination is not subject to review in this court (see CPLR 5501, subd [b]). Given this factual determination the courts below properly concluded that claimants are not entitled to consequential damages stemming from the claimed lack of access. Nor are claimants entitled to damages for "cost to cure”, since such damages are merely an alternative to conse *842 quential damages, available in certain limited cases, and may not be awarded where there is simply no basis for any consequential damages (see Mayes Co. v State of New York, 18 NY2d 549). Finally, we conclude that the Appellate Division did not abuse its discretion by ordering a new trial due to its dissatisfaction with the evidence presented by claimants concerning the proper valuation of the property taken by the State.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Judgment affirmed.

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OPINION OF THE COURT

Memorandum.

The judgment appealed from should be affirmed, with costs. On this appeal taken pursuant to CPLR 5601 (subd [d]), we may review only the prior "non-final determination of the appellate division” upon which the appeal is predicated (CPLR 5501, subd [b]). Since the Appellate Division did not disturb the factual finding, made by the Court of Claims and based upon legally sufficient evidence, that the limited access to claimants’ property was not caused by the taking, that factual determination is not subject to review in this court (see CPLR 5501, subd [b]). Given this factual determination the courts below properly concluded that claimants are not entitled to consequential damages stemming from the claimed lack of access. Nor are claimants entitled to damages for "cost to cure”, since such damages are merely an alternative to conse *842 quential damages, available in certain limited cases, and may not be awarded where there is simply no basis for any consequential damages (see Mayes Co. v State of New York, 18 NY2d 549). Finally, we conclude that the Appellate Division did not abuse its discretion by ordering a new trial due to its dissatisfaction with the evidence presented by claimants concerning the proper valuation of the property taken by the State.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Judgment affirmed.

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Bluebook (online)

404 N.E.2d 1326, 49 N.Y.2d 840, 427 N.Y.S.2d 785, 1980 N.Y. LEXIS 2206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hylan-flying-service-inc-v-state-ny-1980.

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