Opinion
March 30, 1966
Appeal by the State from a judgment of the Court of Claims entered on November 24, 1964, which awarded claimant $4,967 for land appropriated and $31,220 for consequential damages. The appellant for the first time raises two questions: (1) May the State appropriate property under the doctrine of substitute condemnation, and (2) may the State unilaterally agree to acquire a right of way and build a road for the purpose of minimizing or avoiding consequential damages? Since these issues were not raised in the trial court, they may not be raised here for the first time, and, a fortiori, the State may not seek to arrange any substitute condemnation at the appellate level for the first time. Guptill Holding Corp. v. State of New York ( 20 A.D.2d 832) is clearly distinguishable and reliance thereon is misplaced. Judgment affirmed, with costs. Herlihy, J.P., Reynolds, Taylor and Hamm, JJ., concur.