County of Erie v. Abbott-Ridge Roads

— Order and judgment unanimously affirmed, with costs. Memorandum: The critical issue on this appeal is whether respondent Mobil Oil Corporation is entitled to consequential damages as a result of the partial taking of its property by petitioner County of Erie for purposes of widening Abbott and Ridge Roads in the City of Lackawanna. The court determined that it was not, and we agree.

The taking required new curb cuts on both Abbott Road and Ridge Road to provide for access to respondent’s high-volume service station. Mobil argues that the relocation of the curb cuts interfered with the station’s traffic pattern and required it to make major renovations at the site, including moving pump islands, underground gasoline tanks and the garage building. A review of the record, however, shows that the curb cuts on Abbott Road did not change in location and the changes on Ridge Road were minimal. Respondent offered no proof that the changes required by the taking negatively affected access to its property by customers seeking to use the gas pumps or otherwise desiring to avail themselves of the station’s services. Damages resulting merely from circuity of access are noncompensable (Selig v State of New York, 10 NY2d 34, 39; see also, Northern Lights Shopping Center v State of New York, 20 AD2d 415, 419, affd 15 NY2d 688, cert denied 382 US 826). It is only when access to the remaining property is unsuitable that compensability follows (Argersinger v State of New York, 32 AD2d 708, 709).

As to direct damages, the court, without explanation, awarded $11,037.50 to respondent. While the court should have explained the reasons for its determination, the failure here to do so does not require reversal. The county’s expert opined that Mobil’s direct damages were $12,200, while Mobil’s expert put damages at $10,150. The award was thus well within the range of testimony and should not be disturbed (Matter of City of New York [Reiss], 55 NY2d 885, 886; Matter of Village of Hilton v Edelman, 83 AD2d 767, appeal withdrawn 55 NY2d 748). (Appeal from order and judgment of Supreme Court, Erie County, Fudeman, J. — condemnation.) Present — Dillon, P. J., Doerr, Boomer, Green and Pine, JJ.