Opinion
September 22, 1961
Appeal from the Court of Claims.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order of this court dated February 23, 1961, vacated. Upon reargument, judgment of the Court of Claims dated August 17, 1960, modified on the law and facts to reduce the amount of claimant's recovery to the sum of $2,550, with interest thereon from the ninth day of April, 1957, and as so modified affirmed, without costs of this appeal to either party. Certain findings of fact and conclusions of law disapproved and new findings and conclusions made. 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.