Opinion
November 28, 1967
MEMORANDUM BY THE COURT. Appeal from a judgment of the Court of Claims awarding damages for the appropriation of lands for highway purposes. The meaning, intent and effect of the restrictive easement require factual exploration in greater depth before the legal validity of the State's present contention, if not in fact its concession, that the limitation is invalid can be determined. (See Utilities Ind. Corp. v. State of New York, 27 A.D.2d 489; mot. to dsm. app. den. 20 N.Y.2d 775.) Contrary to appellant's argument, the question may be raised for the first time on appeal, being "a basic legal issue, fundamental to the recovery" ( Guptill Holding Corp. v. State of New York, 20 A.D.2d 832); involving, as it does, not only questions of "title and ownership", as in Guptill, but, of necessity, the quantum of damages as well. Remittal may also afford the State an opportunity to clarify its concession and give legal and binding definition and effect to it as matters of title and record; but as to this we express no opinion. Absent a determination of this central issue, we reach no other question. Judgment reversed, on the law and the facts, and a new trial ordered, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by the court.