50 A.D.2d 618 | N.Y. App. Div. | 1975
— Cross appeals from 10 orders of the Court of Claims, entered May 20, 1974, which granted in part and denied in part the State’s motion for dismissal of the claims and for summary judgment. The State moved to dismiss all 10 claims on the grounds that the pleadings failed to state a cause of action and for summary judgment on the ground that there was no merit to the claims. The court granted the State’s motion in part by dismissing the claims asserting damages for alleged taking and appropriation of claimants’ property and denied the motion in part by refusing to dismiss the claims alleged upon the theory of nuisance. The State has appealed from those parts of the orders which deny the motions for dismissal of the claims based upon alleged nuisance. The claimants cross-appealed from so much of the orders granting the State’s motion to dismiss the claims based upon alleged appropriation. The claims allege that the State constructed State highway known as Interstate Route 1-684 which was opened in November, 1970; that the claimants owned real property near the segment of 1-684 between Armonk and Katonah; that claimants’ properties are located from 140 feet to 3,500 feet from the roadbed of 1-684; that the heavy traffic, including both automobile and truck traffic on State highway 1-684 near claimants’ properties has subjected their properties and homes to excessive noise and vibration causing substantial damages to claimants and interfering with the peaceful use and enjoyment of claimants’ properties. There is no claim that the State formally appropriated any of claimants’ property or interest therein. The claimants contend that the noise and vibration emanating from the normal use of highway 1-684 constitutes an appropriation of their