Thomas W. Finucane Corp. v. State

Appellate Division of the Supreme Court of New York

Thomas W. Finucane Corp. v. State

26 A.D.2d 768, 271 N.Y.S.2d 689, 1966 N.Y. App. Div. LEXIS 3790

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

DecidedJuly 1, 1966

DocketClaim No. 39881

StatusPublished

This text of 26 A.D.2d 768 (Thomas W. Finucane Corp. 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

Thomas W. Finucane Corp. v. State, 26 A.D.2d 768, 271 N.Y.S.2d 689, 1966 N.Y. App. Div. LEXIS 3790 (N.Y. Ct. App. 1966).

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Opinion

Judgment unanimously reversed on the law and facts and a new trial granted, without costs of this appeal to [769]*769either party. Memorandum: Reversal is required for several reasons. First, the award for direct damages was higher than any testimony as to damage given by anyone, including the testimony of the two experts for the claimant. The award for consequential damages was based, at least in part, on interference with direct access, which was incorrect. (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.) One of the experts for the claimant, in arriving at the amount of damage, considered, in addition to difficulty of access and lack of adequate parking, “ change of grade, increased traffic, noise, and hazard, and change of locational characteristics”. Also involved in that expert’s contentions were claims of loss relating to the highest and best use before and after the taking. These latter claims were involved and difficult and not satisfactorily established. It is obvious that the Trial Judge considered all of these as items of damage, although at least some of them are not compensable. (Nettleton Co. v. State of New York, 11 A D 2d 899.) (Appeal from judgment of Court of Claims for claimant for permanent appropriation of realty.) Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Marsh, JJ.

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Judgment unanimously reversed on the law and facts and a new trial granted, without costs of this appeal to [769]*769either party. Memorandum: Reversal is required for several reasons. First, the award for direct damages was higher than any testimony as to damage given by anyone, including the testimony of the two experts for the claimant. The award for consequential damages was based, at least in part, on interference with direct access, which was incorrect. (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.) One of the experts for the claimant, in arriving at the amount of damage, considered, in addition to difficulty of access and lack of adequate parking, “ change of grade, increased traffic, noise, and hazard, and change of locational characteristics”. Also involved in that expert’s contentions were claims of loss relating to the highest and best use before and after the taking. These latter claims were involved and difficult and not satisfactorily established. It is obvious that the Trial Judge considered all of these as items of damage, although at least some of them are not compensable. (Nettleton Co. v. State of New York, 11 A D 2d 899.) (Appeal from judgment of Court of Claims for claimant for permanent appropriation of realty.) Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Marsh, JJ.

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Bluebook (online)

26 A.D.2d 768, 271 N.Y.S.2d 689, 1966 N.Y. App. Div. LEXIS 3790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-w-finucane-corp-v-state-nyappdiv-1966.