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ESTHER TAYLOR v. STATE NEW YORK (06/27/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


June 27, 1969

ESTHER TAYLOR, INDIVIDUALLY AND AS EXECUTRIX OF EVERETT H. TAYLOR, DECEASED, APPELLANT,
v.
STATE OF NEW YORK, RESPONDENT

Appeal from judgment of Court of Claims granting motion to dismiss claim.

Del Vecchio, J. P., Witmer, Gabrielli, Bastow and Henry, JJ.

Judgment reversed on the law and facts, with costs, and judgment granted in favor of claimants in the sum of $4,000, with interest from July 17, 1964, in accordance with the following Memorandum: The trial court erred in dismissing the complaint at the close of the evidence upon the ground that claimants had failed to make out a claim against the State. Claimants are the owners of property located on the south side of Route 175 in the Town of Onondaga upon which a retail store has been operated for some years. Following reconstruction of the State highway in 1963 and 1964, during which the grade of the highway was raised above the level of claimants' property, the State constructed a depressed concrete drainage gutter two and one-half to three feet deep along the south side of the road in front of claimants' property. As a result of this gutter, vehicles going to and from claimants' store strike their tailpipes and bumpers on the concrete, and snow, ice, dirt and gravel collect in the gutter. Water accumulates to a depth of 22 inches and spreads over the surrounding area. By reason of these conditions, delivery trucks and customers approaching claimants' premises often use the driveway of a neighboring property owner rather than traverse the gutter in front of claimants' store. Upon this record we find that the reconstruction of Route 175 with the depressed gutter left no suitable means of access to claimants' property, for which damages should be awarded. (Meloon Bronze Foundry v. State of New York, 6 A.D.2d 993.) "Suitable access now is any access by which entrance may be had to a property without difficulty" (Slepian v. State of New York, 48 Misc. 2d 340, 342, quoted with approval in Priestly v. State of New York, 23 N.Y.2d 152, 155), and suitability is related to the highest and best use of the property. (Priestly v. State of New York, supra, p. 156.) Tested by these standards, the access available to claimants' commercial premises was not suitable. Testimony received at the trial as to the difference in market value before and after the deprivation of suitable access supports an award of $4,000 for the damages sustained. (4 Nichols, Eminent Domain [3d ed.], ยง 14.2431.) All concur, except Witmer and Henry, JJ., who dissent and vote to affirm in the following Memorandum: In our opinion, the decision was not against the weight of the evidence.

19690627

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