Knickerbocker Development Corp. v. State

menced this action thereafter, seeking direct and consequential damages resulting from defendant’s appropriation. Claimant alleged that it had purchased the parcels based upon their development potential and that, after the taking, the remaining properties lacked suitable access for their highest and best use, as a high-traffic commercial property. At trial, claimant presented expert testimony that the properties’ corner location and access to two roads were central to development as a high-traffic commercial site and to the properties’ valuation as such. Claimant also presented expert testimony that, due to the loss of frontage and issues of traffic safety related to the roundabout, permits necessary for certain access onto both Route 9 and Stonebreak Road — which would have been granted prior to the taking — would be denied. The Court of Claims credited claimant’s expert testimony regarding the properties’ pretak-ing use as that of a high-traffic commercial property and awarded claimant $83,713 in direct damages.^[1] The court further determined that claimant failed to support its claim that the appropriation caused access to be unavailable, and that there was no change in the properties’ highest and best use, and, accordingly, denied claimant’s request for consequential damages. Claimant appeals, solely as to the denial of such damages.

Consequential damages may be recovered where defendant’s appropriation has caused access to the remainder of a property to become “unsuitable,” that is, “inadequate to the access needs inherent in the highest and best use of the property involved” (Priestly v State of New York, 23 NY2d 152 , 155-156 [1968]; see Lake George Assoc. v State of New York, 23 AD3d 737 , 738 [2005], affd 7 NY3d 475 [2006]). Access may be rendered unsuitable if the taking of frontage on a property abutting a highway or “the physical construction of [an] improvement itself, so impairs access to the remaining property that it can no longer sustain its previous highest and best use” (La Briola v State of New York, 36 NY2d 328 , 332 [1975]; see Matter of Metropolitan Transp. Auth. [Washed Aggregate Resources, Inc.], 102 AD3d 787 , 793 [2013], appeal dismissed 21 NY3d 938 [2013], lv denied 22 NY3d 858 [2013]). “[T]he question of suitability is a factual one directly related to the highest and best use of the property” (Priestly v State of New York, 23 NY2d at

156 ). The factual issues as to whether a property’s “remaining access can fairly be characterized as unsuitable” are to be determined by the trial court, and that determination will be upheld if supported by the record (Rider v State of New York, 192 AD2d 983 , 985 [1993]; see Matter of Metropolitan Transp. Auth. [Washed Aggregate Resources, Inc.], 102 AD3d at 794 ).

Here, claimant alleged that access to Route 9 was limited as a result of the taking because it would no longer be permitted to put two access points on the remaining frontage of the two abutting parcels. However, defendant’s expert testified that Department of Transportation (hereinafter DOT) policy permitted only one access point for each commercial property on a particular road and would grant exceptions only where an owner provided an engineering report and could justify the need for additional access. Defendant’s expert further testified that, in 2006, the Town adopted a comprehensive plan that prioritized the minimization of curb cuts along the Route 9 corridor and required shared driveways wherever feasible. Notably, the assertion that claimant’s parcels would be permitted one access point on Route 9 after the taking “as of right” was uncontested.

Claimant further alleged that suitable access from Stone-break Road would be prohibited after the taking. Claimant’s expert testified that, based on his experience working with DOT, the new traffic pattern and road markings resulting from the construction of the roundabout would prohibit left-hand turns at the proposed pretaking site of access. As to the possibility of receiving a permit to construct a right-in/right-out access, claimant’s expert testified that such a determination would be the function of the Town’s Planning Board. As the Court of Claims highlighted in its decision, claimant’s expert was unable to identify any town or state requirements that would prohibit an access point on the remaining Stonebreak Road frontage. Claimant had not yet sought the permits to construct access to the property. On the basis of this testimony and documentation, including proposed plans and photographs of other properties, the Court of Claims found that claimant had failed to establish with reasonable probability that two access points on Route 9 would have been permitted before the taking or that a permit for one right-in/right-out access on Stonebreak Road would be denied after the taking.^[2]

We find that the record supports the determination of the