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Durso v. State

Appellate Division of the Supreme Court of New York, Third Department
Jun 28, 1967
28 A.D.2d 803 (N.Y. App. Div. 1967)

Opinion

June 28, 1967


Appeal by claimant from a judgment in an appropriation case on the ground of inadequacy. Prior to the appropriation for a new highway, claimant's land was located on both sides of Route 23, with a motel on one side of the road and a restaurant on the other side. In addition, there was vacant land on the restaurant side which had been subdivided into planned building lots and a subdivision map therefor filed. The taking included some of the restaurant and subdivision lands together with a part of claimant's sewage system. The roadway was changed so that after the taking, it ran behind the restaurant, but direct access to claimant's parking lot was still present. Claimant's witnesses testified to consequential damages occasioned by diminished access which is noncompensable (see Nettleton Co. v. State of New York, 11 A.D.2d 899; National Biscuit Co. v. State of New York, 12 A.D.2d 998, mod. on other grounds, 14 A.D.2d 729, affd. 11 N.Y.2d 743, cert. den. 370 U.S. 924). The award for direct damages was based upon a finding that the land taken was only a commercial use loss, while both the claimant's and State's experts, separated the motel, restaurant and subdivision uses. There was a failure to delineate the nature of the subdivided land as well as a failure to separate the two commercial uses; and where there is such a failure to give separate treatment to separate parcels or to explain the decision to unite them, the findings are insufficient for judicial review ( Conklin v. State of New York, 22 A.D.2d 481). There was an undisputed loss to a part of claimant's sewage system, with a wide variation of value which, upon the retrial to be had herein, should receive separate treatment. We would further note that the experts failed to give breakdowns between direct and consequential damages and gave no details of their calculations regarding the subdivision land. In order to provide for proper review, there should also be set out both acreage and increments for subdivision use ( Golden Park Realty Corp. v. State of New York, 28 A.D.2d 605). Judgment reversed, on the law and the facts, and a new trial ordered, with costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.


Summaries of

Durso v. State

Appellate Division of the Supreme Court of New York, Third Department
Jun 28, 1967
28 A.D.2d 803 (N.Y. App. Div. 1967)
Case details for

Durso v. State

Case Details

Full title:HARRY A. DURSO, Appellant, v. STATE OF NEW YORK, Respondent. (Claim No…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 28, 1967

Citations

28 A.D.2d 803 (N.Y. App. Div. 1967)

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