Rochester Gas & Electric Corp. v. State

225 A.D.2d 1047, 639 N.Y.2d 221

Opinion

Memorandum: The Court of Claims properly awarded consequential damages for the condemnation of a portion of claimant’s parcel of land. The evidence at trial supports the court’s conclusion that claimant constructed excess subway conduits in "reasonable anticipation of future needs” and that the condemnation prevented claimant from ever fully utilizing the reserve capacity (Matter of Onondaga County Water Dist. v Board of Assessors, 39 NY2d 601, 604, 605-606). The fact that claimant did not establish that the appropriation actually frustrated existing plans for expansion is not dispositive.

Defendant contends that, in reviewing the evidence of consequential damages, this Court should draw a strong adverse inference against claimant for its failure to call a. key witness. Because defendant did not raise that issue at trial or in a timely post-trial motion (see, CPLR 4404 [b]; 4405), it is unpreserved for review (see, Antone v General Motors Corp., Buick Motor Div., 64 NY2d 20, 31). (Appeals from Judgment of Court of Claims, Blinder, J. — Appropriation.) Present — Pine, J. P., Lawton, Fallon, Callahan and Doerr, JJ.