Burns v. State

1.) Judgment unanimously affirmed, without costs. Memorandum: In this appropriation case the trial court correctly concluded that the evidence failed to establish a reasonable probability of rezoning the subject parcel from residential to commercial use at the time of the taking (Matter of City of New York [Shore Front High School—Rudnick], 25 NY2d 146 , mod 26 NY2d 748 ; Masten v State of New York, 11 AD2d 370 , affd 9 NY2d 796 ; Matter of City of Rochester v Dray, 60 AD2d 766 ). Inasmuch as the claimant’s appraisal was based solely on a speculative commercial use providing only commercial sales as comparables, the trial court properly disregarded it and made an award on the basis of the State’s evidence establishing a residential highest and best use (Ridgeway Assoc, v State of New York, 32 AD2d 851 , app after remand 40 AD2d 1051 , affd 34 NY2d 678 , and cases cited therein). Claimant’s contention of a de facto appropriation of a portion of the property due to loss of access (Kravec v State of New York, 40 NY2d 1060 ) is not supported in the record. Continued, although limited, access was available and the limitation was taken into consideration in the award of consequential damages by the trial court (see Priestly v State of New York, 23 NY2d 152 ; Wayside Nurseries v State of New York, 36 AD2d 212 , affd 34 NY2d 876 ). (Appeal from judgment of