34 A.D.2d 880 | N.Y. App. Div. | 1970
—Judgment unanimously reversed on the law and facts with costs to appellant, and a new trial granted in accordance with the following memorandum: Claimant’s property was located in a busy commercial area at the northeast corner of Niagara Falls Blvd. and Chestnut Ridge Road and contained 62,171 square feet. The -State appropriated 10,719 feet thereof, including all of the frontage on Niagara Falls Blvd., in connection with the construction of a ramp to the Youngmann Expressway, and cut off all access to the boulevard or the ramp. The court accepted the State’s appraisal of the square foot value of the land, that is $1.70, and awarded claimant $18,220 for the appropriation. Although the State’s witness testified that the remainder of the property was damaged to the extent of 40 cents per square foot by this appropriation, the court awarded nothing therefor, holding that since there was full access thereto from Chestnut Ridge Road, the damage was noncompensable. In our view the court erred in failing to include in the award for the direct taking an amount constituting fair compensation for the reduced value of the remainder of the parcel (see 4 Nichols, Eminent Domain [rev. 3d ed.], §§ 14.1, 14.1 [2], 14.1 [3], 14.2, 14.21 et seq.). The court also erred in holding as a matter of law that claimant was entitled to no damage for loss of access, but we note that the case law was unclear in this respect when the decision was made in this case. The highest and best use of the property before the appropriation was commercial. Although the State contended that the highest and