National Biscuit Co. v. State

Memorandum: In our prior decision in this case (12 A D 2d 998) we directed a new trial to determine what damage, if any, claimant had sustained by reason of the change of grade of an arterial highway in front of its property. Subsequently, in Selig v. State of New York (10 N Y 2d 34), it was held that where an abutting property owner has free and uninterrupted access to a so-called adjoining service road there was no change of grade as to the property and the claimant had no right, vested or otherwise, to abut upon the arterial highway. We construe that holding to be here controlling. Upon reargument claimant has raised certain issues, apparently not presented in the Selig case (supra) as to its constitutional rights to be compensated for loss of access to an adjoining highway. We have examined these questions and find them to be without validity. In our opinion, claimant’s award should be reduced to the amount of land actually taken in fee or by easement. Both experts called by claimant testified that such amount was the sum of $2,550. (Reargument of cross appeals from judgment of Court of Claims for claimant on a claim for damages for appropriation of realty.) Present — Williams, P. J., Bastow, Goldman, MeClusky and Henry, JJ.