Opinion
May 26, 1978
Appeal from the Court of Claims.
Present — Marsh, P.J., Dillon, Hancock, Jr., Denman and Witmer, JJ.
Judgment unanimously affirmed, without costs. Memorandum: In this appropriation case the trial court correctly concluded that the evidence failed to establish a reasonable probability of rezoning the subject parcel from residential to commercial use at the time of the taking (Matter of City of New York [Shore Front High School — Rudnick], 25 N.Y.2d 146, mod 26 N.Y.2d 748; Masten v State of New York, 11 A.D.2d 370, affd 9 N.Y.2d 796; Matter of City of Rochester v Dray, 60 A.D.2d 766). Inasmuch as the claimant's appraisal was based solely on a speculative commercial use providing only commercial sales as comparables, the trial court properly disregarded it and made an award on the basis of the State's evidence establishing a residential highest and best use (Ridgeway Assoc. v State of New York, 32 A.D.2d 851, app after remand 40 A.D.2d 1051, affd 34 N.Y.2d 678, and cases cited therein). Claimant's contention of a de facto appropriation of a portion of the property due to loss of access (Kravec v State of New York, 40 N.Y.2d 1060) is not supported in the record. Continued, although limited, access was available and the limitation was taken into consideration in the award of consequential damages by the trial court (see Priestly v State of New York, 23 N.Y.2d 152; Wayside Nurseries v State of New York, 36 A.D.2d 212, affd 34 N.Y.2d 876).