Forest City Enterprises, Inc. v. State , 458 N.Y.S.2d 397 ( 1982 )

— Judgment unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: In connection with the improvement of the intersection of Millersport Highway and Maple Road in the Town of Amherst, the State appropriated two parcels of claimants’ tract of land. The appropriation totaled 2.008 ± acres, leaving claimants with a remaining tract of 6.654 ± acres. The Court of Claims awarded claimants $262,362 in direct damages and $130,438 for consequential damages to the remainder parcel. The State’s appeal relates solely to the award of consequential damages. Before the taking, claimants’ property had a frontage on Maple Road of about 1,217.25 feet and a depth of approximately 300 feet. The westerly line of the parcel was separated from Millersport Highway by what was termed upon trial as a “paper street”. The total taking consisted of the westerly 343 feet of frontage on Maple Road to the full depth of the parcel. The Court of Claims found that the highest and best use of claimants’ tract both before and after the taking was for general commercial development, either as a single tract or for division into several smaller lots. The court also found that the before parcel had no frontage on Millersport Highway and that the claimants failed to establish that there was any right of access from the before parcel to Millersport Highway. Given such findings all of which are supported in the record, there is no basis for an award of consequential damages. Aside from decreasing the size of claimants’ tract, the only other effect of the appropriation was a lessening of visibility from Millersport Highway to the remainder parcel. Loss of visibility is not compensable (Acme Theatres v State of New York, 26 NY2d 385; 224 Troup Realty v State of New York, 88 AD2d 773). (Appeal from judgment of Court of Claims, Moriarty, J. — appropriation.) Present — Dillon, P. J., Callahan, Denman, Boomer and Schnepp, JJ.