Opinion
May 26, 1966
MEMORANDUM BY THE COURT. Cross appeals from a judgment of the Court of Claims for the appropriation of real property, determination of the appeals having been withheld and the case remitted for new or additional findings ( 24 A.D.2d 924). By new findings, the Court of Claims has now, upon sufficient evidence, assigned to the improved portion of the tract, which is in closer proximity to Southern Boulevard, a value of $20,000 per acre and to the remaining portion a value of $10,000 per acre, based upon residential use but including an increment on account of the probability of an imminent change in zoning to commercial. Contrary to the State's contention, the court was warranted in finding that the permanent easement for purposes of a sewer line was in practical effect and for purposes of evaluating damage the equivalent of a fee taking. The trial court was justified, also, in awarding consequential damages (in excess of the benefits or enhancement in value created by the improvement) for the substantial loss of frontage on Southern Boulevard; but the record does not support an award of damages for the mere circuity of access attributable to deprivation of access to the paper streets; and the award of $19,190 for consequential damages must be reduced to $15,000. Judgment modified, on the law and the facts, so as to reduce the award to $73,330, with appropriate interest, and, as so modified, affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.