Opinion
March 4, 1971
Appeal by the claimant from so much of a judgment of the Court of Claims as awarded him $600 damages for appropriation of a cesspool on the ground of inadequacy. The sole issue raised on this appeal (see 28 A.D.2d 803, for a previous appeal in this case) is the amount of damages awarded for the appropriation of appellant's sewer system, which is before us for the second time. Prior to the taking appellant's restaurant was serviced by a gravity type sewage system. The State changed the location of Route 23 and new Route 23 now is located to the rear of the restaurant. This new location of the highway removed the second cesspool or cistern of claimant's sewage system and cut across the tile leach lines which led to a substantial dispersal area. Following the appropriation this area was severed from the restaurant and made unavailable because of the highway. The leach lines and dispersal area were indispensable to claimant's gravity sewer system and merely allowing an amount of $600 for a new cistern is clearly inadequate and unfair under all the facts in the case, and should be increased to the sum of $5,000. The record shows that this gravity system at the time of the appropriation was in substantial conformity with the requirements of the New York State Sanitary Code. On the other hand, claimant on this appeal seeks damages for the installation of a complicated and sophisticated sewerage system which never existed at the restaurant, and the trial court was justified in rejecting same. Judgment modified, on the law and the facts, by increasing the damages to claimant's sewerage system to the sum of $5,000 with appropriate interest and, as so modified, affirmed, with costs to appellant. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.