Nash v. State

Full title: JAMES NASH et al., Appellants, v. STATE OF NEW YORK, Respondent. (Claim…

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

Date published: May 14, 1964

21 A.D.2d 736 (N.Y. App. Div. 1964)

Opinion

May 14, 1964

Appeal from the Court of Claims.

Present — Bastow, J.P., Goldman, Henry, Noonan and Del Vecchio, JJ.

Judgment unanimously affirmed, without costs of this appeal to either party. Memorandum: While an abutting owner may not be deprived without compensation from all access to a highway ( Egerer v. New York Cent. H.R.R.R. Co., 130 N.Y. 108, 112) what may be a suitable means of access is a question of fact and mere inconvenience does not stamp such access as unsuitable ( Holmes v. State of New York, 279 App. Div. 489, 491). Concededly, claimants present means of access is less convenient than before the construction of the elevated highway in front of their premises but the finding of the trial court on the issue is not contrary to the evidence. The complaints of claimants largely center upon conditions during the Winter months when snow accumulates on the access road. It is not clear from the record whether the legal responsibility for the plowing or removal of the snow from this access road is upon the municipality or the abutting owners. In any event the claim herein is not based on the failure of the State to remove the snow. We recognize the inequities presented in claims, such as this one, based on a change of grade of a highway and have written "that the result is harsh and is discriminating as to property located in a town [but] [t]he remedy lies with the Legislature." ( Bennett v. State of New York, 284 App. Div. 828, 829; Raymond v. State of New York, 4 A.D.2d 62, 64, affd. 4 N.Y.2d 961.)