New York State Court of Claims

New York State Court of Claims



Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Silver and FeldmanBy: Sammy Feldman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Sean E. Gleason, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 31, 2000

Official citation:

Appellate results:
Affirmed - 4th Dept., December 21, 2001
See also (multicaptioned case)


The Court has read and considered the following numbered papers, 1 to 6, on Defendant's motion for summary judgment dismissing claim:

1, 2, 3 Notice of Motion with annexed supporting affidavits
  1. Answering affidavit
5, 6 Filed Papers Claim, Answer

This claim was filed on November 8, 1996, and seeks damages for the taking of Claimants' property without just compensation, for substantial interference with and disturbance of Claimants' rights to the use and enjoyment of their property, and for nuisance through violations of federal noise abatement regulations and use of lighting in such configuration and intensity as to cause Claimants' home to remain in a lighted state throughout the evening hours. Defendant's motion to dismiss argues that neither a de jure nor a de facto taking of the property has occurred, and that in any event the action is time-barred.

The subject property is a single family dwelling with a carriage house. It is located at 7 Harwood Lane in the Town of Pittsford adjacent to Route 490, a limited-access divided highway. The claim alleges that during the period 1993 through 1996, the State Department of Transportation embarked upon a project to widen Route 490 from the Linden Avenue interchange southeast to Golf Avenue, a distance of about three miles. The project involved widening Route 490 from four lanes to six, relocating and redesigning certain entrance and exit ramps and bridges, and installing noise abatement barriers and lighting. The answering affidavit of Claimant Michael Macaluso avers that the project resulted specifically in the addition of not two but three more lanes in the vicinity of Route 31F, reconfiguration of the exit and entrance ramps at Route 31F, and the installation of noise barriers and new lights at the exit area. Claimants' papers indicate that the reconstruction project was completed in 1995, but that the noise abatement and lighting work were not completed until the latter part of 1996. Mr. Macaluso's affidavit states that the noise barriers were not installed near his property; that the road bed is now 100 feet closer to his property; that the new on-ramp to Route 490, which runs along the rear of his property, is constructed on an incline and results in unbearable noise as vehicles are forced to accelerate to enter the highway; that the noise is audible even when all the doors and windows are shut and causes the house to vibrate, and that the lighting in the exit area is so bright one can read a newspaper inside the house without any interior illumination. He further avers that the Town of Pittsford has reduced his property assessment by $75,000 since the reconstruction. Claimant's affidavit also states that he has measured the decibel levels generated by the traffic noise and that they exceed the maximum levels permitted under federal regulations. The affidavit of Mary Beth Stott, a DOT Real Estate Specialist II for Region IV, states that, with one exception apparently unrelated to this case, the State took possession of all property appropriated for the Route 490 reconstruction on or before January 1, 1993, commenced the project in the spring of 1993, and completed construction February 1, 1996. Her affidavit further indicates that the State did not formally take, physically invade, or restrict access to Claimants' property.

As Defendant's papers correctly point out, the Court of Appeals has clearly indicated the limited scope of de facto appropriation in the State of New York. In City of Buffalo v Clement Co., 28 NY2d 241, the property had suffered from condemnation blight over several years prior to its ultimate de jure appropriation. Although the Court indicated that ultimately an owner might recover damages for true condemnation blight attributable to affirmative acts of the appropriating authority once a de jure appropriation had occurred, it rejected the owner's argument that damages should be awarded for a de facto appropriation:

[I]t is clear that a de facto taking requires a physical entry by the condemnor, a physical ouster of the owner, a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner's power of disposition of the property.

. . . .[I]t has long been settled that a de facto taking does occur where the property has been the subject of some direct legal restraint on its use. . . . As noted above, direct legal restraint has traditionally embraced only laws which by their own force and effect, deprive owners of property or materially affect its beneficial use and free enjoyment. [28 NY2d 241, 255-256 (citations omitted)].

It is undisputed here that there has been no de jure appropriation, no physical entry upon the property, no ouster of the owners, and no interference with the owners' access. The argument of Claimants' counsel that excessive light and noise constitute a legal restraint on use of the property is clearly without merit in light of the above language from City of Buffalo v Clement Co., supra, and the Court concludes that there has been no legal restraint upon their use, possession, enjoyment or power of disposition of the property. Accordingly, there can be no de facto appropriation in these circumstances, and the claim for such must be dismissed.

Claimants have also, however, alleged a cause of action for nuisance. Pursuant to 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48, a continuous trespass or nuisance is considered to give rise to successive causes of action that would not be time-barred until expiration of the period needed to create an easement by prescription or change title by operation of law. The Court of Appeals' later decision in Jensen v General Elec. Co., 82 NY2d 77, concluded that New York's toxic tort remedial Statute of Limitations, CPLR 214-c (three years from date of discovery of the injury), was intended to supersede the judicially created exception for continuing wrongs causing injury to property from exposure to a "substance or combination of substances." For purposes of this discussion the Court assumes that exposure to light and noise is not the equivalent of exposure to a "substance or combination of substances" within the meaning of CPLR 214-c, and would continue to be viewed as a continuous wrong giving rise daily to new causes of action.

Such theory of recovery, however, is inapplicable here. It is clear that the harm complained of is incidental to normal operation of the highway and must be borne by adjoining owners whose property has not been appropriated for the project. In Cities Serv. Oil Co. v City of New York, 5 NY2d 110, rehearing denied 5 NY2d 1041, writ of certiorari denied, 360 US 934, the owner and lessee of a gasoline service station sued for injunctive and monetary relief because two city bus stops were located in such a way as to create an undesirable traffic pattern and sporadic blocking of the station's curb cuts. The Court of Appeals concluded that the traveling public's right to use the streets, not the private owner's right to ingress and egress, was paramount. It further stated that the establishment of bus stops is indisputably performed in the proper exercise of governmental powers and may neither be regarded as a taking nor serve as a predicate for a cause of action. "Any loss resulting from the interference with an abutting owner's enjoyment of his property is damnum absque injuria and the owner must bear it" (id at 117).

Similarly here, the case law is clear that where there has been no partial taking of property by appropriation, an owner whose property happens to adjoin a public highway is not entitled to damages resulting from the depreciation of his property due to noise of cars and trucks passing on the highway (Sperry v State of New York, 50 AD2d 618, 619, and cases cited therein, aff'd, 40 NY2d 997, see also Ahlheim v State of New York, 22 AD2d 752).

Accordingly, the motion is granted and Claim No. 95092 is dismissed.

October 31, 2000
Rochester, New York

Judge of the Court of Claims