New York State Court of Claims

New York State Court of Claims

ZAHURAK v. THE STATE OF NEW YORK, #2006-030-586, Claim No. 105941, Motion Nos. M-72148, CM-72271


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):
Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
December 22, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 9 were read and considered on Claimants’ motion

for summary judgment on their first cause of action, and Defendant’s cross-motion for summary

judgment dismissing the Claim:

1,2 Notice of Motion; Affirmation of Kenneth M. Stenger, Counsel for Claimants dated August 11, 2006 and attached exhibits

3-5 Notice of Cross-Motion; Affirmation of J. Gardner Ryan, Assistant Attorney General dated September 11, 2006 and attached exhibit, Memorandum of Law

  1. Affirmation in Reply and in Opposition of Kenneth M. Stenger, Counsel for Claimants dated September 27, 2006
  1. Affirmation of J. Gardner Ryan, Assistant Attorney General dated October 2, 2006
8,9 Filed Papers: Verified Claim; Zahurak v State of New York, Decision and Order, UID #2004-030-509, Claim No. 105941, Motion Nos. M-67486, CM-67736 (Scuccimarra, J., filed March 31, 2004) and underlying papers

After carefully considering the papers submitted and the applicable law the motions are disposed of as follows:

Claimants seek summary judgment on their first cause of action alleging de facto appropriation by the State of New York due to the intentional act of physically closing Claimants’ driveway - their exclusive direct access to State Route 44 - and also seek an immediate award of damages in the amount of $84,000.00, premised upon the expert report presented with the papers opining that suitable access for the claimants’ highest and best use of their property has been lost as a result of Defendant’s allegedly unlawful actions, or there has been a change in the highest and best use.

Defendant argues in its cross-motion for summary judgment dismissing the claim, that there was no compensable taking. [Affirmation by J. Gardner Ryan, Assistant Attorney General, ¶3]. It states that “placing a traffic signal on the state highway is a legitimate exercise of the State’s police power, and the incidental need to relocate claimants’ driveway for the effective operation of the signal was regulation of their right of access, not appropriation.” [id.]. Because the State acted within the scope of its lawful authority to manage the highway, the property still has practicable access to the highway, and the Claimants continue to enjoy economic benefit from its use, the closing of the driveway has not caused claimants any actionable injury, Defendant maintains. The Zahuraks’ driveway onto Route 44, Defendant indicates, was constructed across the State’s right-of-way, and its use - as would be true with any abutting landowner enjoying access to a State highway - was with the revocable permission of the DOT.
Factual Background
The following facts do not appear to be in dispute. Robert F. Zahurak and Lisa L. Zahurak are the owners of property located in the Town of Poughkeepsie at the northwest quadrant of the intersection of State Highway Route 44 and Cherry Hill Drive, a private road, purchased in 1991. [See Affirmation of Kenneth M. Stenger, Exhibit I, Deposition of Robert F. Zahurak]. The Claimants’ property consists of approximately 3.1 acres of land improved with a residence, an automobile body repair shop occupied by Rob’s Prestige Auto Body, Inc., and standard improvements such as internal paving, parking and storage areas. It is a corner parcel, with ± 72 feet of frontage on Route 44 at Cherry Hill Drive, and ±845 feet of frontage on Cherry Hill Drive.

Cherry Hill Drive is a 60 foot wide, two lane paved roadway, and services the 500 unit Cherry Hill Apartment Complex - indeed the entrance to the complex is where the roadway ends - Adams Fairacre Farms, a store complex that runs along the entire length of Cherry Hill Drive, and the Claimants.

Claimants’ property has two right-of-ways for purposes of ingress and egress over Cherry Hill Drive, and prior to the acts alleged here was served by three curb cuts generally, including a 15 to 17 foot wide driveway leading directly to State Route 44 and two, 30 foot wide, bi-directional driveways on Cherry Hill Drive. The southern-most Cherry Hill Drive driveway was approximately 220 feet from the intersection of Route 44 and Cherry Hill Drive. The northerly driveway was approximately 280 feet from the intersection. The driveway leading from Route 44 was used as a means of ingress and egress to the residence. The driveways from Cherry Hill Drive led to - and still lead to - Claimants’ auto body business. Additionally, during his deposition, Mr. Zahurak indicated that his tow trucks would use the access to Route 44 when a truck needed to get to a location “sooner than later.” [Affirmation by Kenneth M. Stenger, Exhibit I, p 14].

In and around 1998 and 1999 the property across Route 44 from Claimants’ property was in the process of being developed as a small shopping center. Various entities, including the Town of Poughkeepsie Planning Board, the DOT, and Kirchhoff Construction Management, Inc., (hereafter Kirchhoff) the agent for the owners of the development, Ameribrit, LLC, (hereafter Ameribrit),were involved in the process, with one result being that the driveway from Claimants’ property to Route 44 was closed off permanently on December 15, 1999, to enable the traffic signal installation required of the developer at the intersection of Cherry Hill Drive and Route 44 to be activated.

In earlier phases of planning, as part of obtaining Town of Poughkeepsie Planning Board approval, it was suggested that Kirchhoff be required to install a traffic signal to regulate the traffic entering and exiting its commercial plaza. Kirchhoff applied for and was granted a highway entrance permit by the DOT to be located on Route 44 opposite the mouth of the intersection between Cherry Hill Drive and Route 44. Indeed, municipal approval of the project was conditioned upon obtaining such a permit. The problematic part of the issuance of the permits to create an entrance from the developer’s property to Route 44, and to install a traffic signal, is that arguably engineering standards required that if the traffic signal were to be installed, no other entrances within 30 feet of the new intersection would be allowed, including Claimants’ driveway.[1] Thus, the Claimants aver, the DOT conditioned issuance of its permit upon the developer’s negotiating closure of Claimants’ driveway, as well as two other driveways owned by others.

Mr. Kirchhoff testified at his deposition that the development project encompassed an area along State Route 44 across the highway from its intersection with Janet Drive to the west, to Cherry Hill Drive at the easternmost portion of the site. [See Affirmation of Kenneth M. Stenger, Exhibit B]. He said that installation of a traffic signal was a requirement mandated by the DOT. Prior to the issuance of a DOT permit in September 1999 to allow access to the State highway, Mr. Kirchhoff recalled having conversations with DOT employees relative to closure of the Claimants’ driveway, although he could not say a specific date.

In correspondence between the DOT and the developer’s engineers, from February 1999 to December 1999, the elimination of the Claimants’ access to Route 44 is mentioned as part of the plan for the development of the property owned by Ameribrit and the reconfiguration of the proposed four-way intersection between the already existing intersection of Cherry Hill Drive and Route 44, and the new entrance from the developer’s property onto Route 44.

Indeed, the driveway from Claimants’ property was apparently temporarily closed by DOT employees with barrels at the end of the driveway on December 3, 1999, when the traffic signal was activated, and Claimants removed the barrels that had been placed there. Verbally advising Mr. Zahurak that his driveway was closed “as of now”, the DOT also wrote to the developer’s engineer reminding them that the continued operation of the signal required satisfaction of the highway work permit, including permanent closure or relocation of the Claimants’ driveway. Mr. Zahurak testified during his deposition that when he spoke with DOT employee Jeff Wickeri within minutes of the barrels having been placed at the end of his driveway, he learned that a letter had been sent “yesterday, and if . . . [he] checked his mailbox towards the end of the afternoon maybe it would be there.” [Affirmation of Kenneth M. Stenger, Exhibit I, p 23].

In a December 8, 1999 letter to the DOT, Ameribrit refers to the December 3, 1999 letter from DOT to the engineer, saying that efforts to privately negotiate the closure or relocation of the Claimants’ driveway had failed. [Ibid. Exhibit E]. Ameribrit indicates that given the DOT’s determination that the intersection required a traffic signal - noting that closure of Claimants’ driveway access to Route 44 had been recommended some time ago, not just in connection with the developer’s plans - Ameribrit requests that the DOT amend its highway work permit to exclude eliminating the driveway, and that the DOT itself close the driveway. [Id.]; [See also Affirmation of J. Gardner Ryan, dated September 30, 2003, Exhibit 4 re: earlier recommendations to close driveway].

Then in a December 10, 1999 letter to Claimant Robert Zahurak - apparently the first time the State directly contacted Claimant - the DOT advised that “. . . the signalization of Route 44 and Cherry Hill Drive was activated last Friday on December 3rd . . . Although the Department had approved the closing of the driveway under the terms of the Highway Work Permit (HWP) issued to Ameribrit, the developer had agreed to construct a replacement access either on Route 44 or Cherry Hill Drive, subject to your approval. To this date you have rejected this solution. Based on highway safety concerns and the responsibility of the Department to protect all users of our facilities, this letter shall constitute notice that the driveway will be permanently closed on or about December 15, 1999. Therefore, if the driveway relocation matter is not resolved by that date, the current HWP will be amended to eliminate the driveway’s closure and that burden will be shifted to the Department. Thereafter, any request for replacement access to Route 44 will require a new Permit which would be issued to the respective property owner . . . ” [Affirmation of Kenneth M. Stenger, Exhibit E].

Mr. Zahurak indicates that in June 1999 he was visited by Joe Kirchhoff, who introduced himself, and indicated that he was planning on re-doing the intersection of Cherry Hill Road and Route 44, and that the State wanted him to close Mr. Zahurak’s driveway. [Affirmation by Kenneth M. Stenger, Exhibit J]. At the time, Mr. Zahurak said he would like to avoid closing the driveway. [Id.]. Two days later, Mr. Kirchhoff returned saying that it had been worked out, and that the DOT would be satisfied if Kirchhoff were to put a “no left turn” sign at the end of Zahurak’s driveway. [Id.]. In October 1999, Mr. Zahurak observed that a two foot wide trench had been dug in front of his property including the driveway along Route 44. [Id.]. Workers hired by Kirchhoff told him that they were replacing the curbing, but that a drop curb would be placed where Claimants’ driveway accessed Route 44. [Id.]. In the interim, barrels had been placed in front of the driveway because the trench was not traversable. [Id.]. Thereafter, the drop curb as well as the other curbing was put in, and the driveway remained accessible until mid-November, 1999, when Mr. Zahurak received a telephone call from Mr. Kirchhoff. [Id.]. Mr. Kirchhoff told him that the State had changed its mind over the no left turn sign, and that Mr. Kirchhoff would have to close Mr. Zahurak’s driveway, saying he had the State’s authority to do so. [Id.].

According to Mr. Zahurak, after suggesting the use of crumbling materials to construct the curb so that a “driveway” would be created over the curb thus constructed when one of the Claimants’ snowplows drove over it, Mr. Kirchhoff then proposed two alternate places he would cut a curb for Claimants. [Id.]. The first suggestion was another curb cut on Cherry Hill Road that would be directly in front of a solid shale rock with a steep incline, and would create traffic over the septic system. [Id.]. The second suggestion was to cut a curb further west on the front of the property on Route 44. [Id.]. Mr. Zahurak noted that the property sloped at a 45-degree angle at the point suggested, sidewalk and bushes leading to the residence would have to be removed and, as with the first suggestion, only the offer to cut a curb was made. [Id.]. Any expense associated with regrading, or paving a driveway would be Mr. Zahurak’s. [Id.]. Mr. Kirchhoff then offered to have his people do the work, but Mr. Zahurak would pay for the labor and the fuel of the trucks used, and would do any landscaping and walkway replacement. [Id.]. When Mr. Kirchhoff offered to construct the driveway next, replacement of the grass and landscaping would still be Mr. Zahurak’s responsibility. [Id.]. As Mr. Zahurak thought about it, he concluded that it was not worth it to have the mess for a relocated driveway, and queried whether he should be otherwise compensated for the relocation of the driveway from its original spot. [Id.].

At that point, apparently, Mr. Kirchhoff said he would not pay Claimants, but that the State could. [Id].

The next day, Mr. Kirchhoff came to the property and, without Claimants’ consent, painted white lines along the front yard to show where the driveway would be relocated, and then agreed to plant grass. [Id.]. Mr. Zahurak still was not sure that the change wouldn’t decrease the value of his property, and suggested that additional compensation might still be warranted. [Id.]. Mr. Kirchhoff also suggested leaving the driveway where it was, and signalizing it. [Id.]. Mr. Zahurak expressed himself amenable to that solution. [Id.]. Mr. Kirchhoff also “pushed” Mr. Zahurak for a number as to what kind of compensation he was thinking of. [Id.]. Mr. Zahurak “threw out” a figure of $25,000.00. [Id.]. After the dollar figure was mentioned, Mr. Kirchhoff did not comment. [Id.]. This was a “little bit before Thanksgiving 1999.” [Id.].

Mr. Zahurak did not hear anything else until December 3, 1999, when he saw the DOT employees, and Mr. Kirchhoff, and learned that the DOT was closing his driveway as aforesaid. [Id. ¶20].

Deposition testimony from Jeffrey Wickeri, the DOT employee in charge of permits in the traffic engineering safety group who was one of the signatories to the highway permit granted to the developer; and from William D. Fitzpatrick, Director of Traffic and Engineering and Safety for Region 8 for the DOT, is also attached to Claimants’ motion. [Affirmation by Kenneth M. Stenger, Exhibits G and D respectively]. As early as June 24, 1996 it appears that the DOT was suggesting closure of Claimants’ driveway access onto Route 44, apparently in connection with a project proposed by Claimants themselves, in a letter directed to the Town Planner. [See Affirmation by Kenneth M. Stenger, Exhibit H]. During Mr. Zahurak’s deposition, he indicated that his project was ultimately granted by the Town. When Mr. Fitzpatrick was asked why the driveway was not closed in 1996 pursuant to the regulatory authority possessed by the DOT, he responded that at the time there was no “mechanism” by which the DOT would step in and close the driveway in his opinion, since the intersection of Cherry Hill Drive and Route 44 was serviced by a stop sign, and no studies or regulations mandated such closure. [Affirmation by Kenneth M. Stenger, Exhibit D, pp 21-25]. Indeed, he opined that without a trigger such as a permit application, he thought the DOT would have no authority to close Mr. Zahurak’s driveway. [Id.].

More expansively, Mr. Fitzpatrick stated - albeit with the proviso that this was his personal understanding - that “[t]he department in the way that it operated and still does is to negotiate closings of driveways, relocations of driveways when there’s an alternate access for that particular property. If there is no alternate access then the department must gain access or give access to that property from the state highway. It can limit turning movements, but the property owner has the right to access. So it would be a determination whether that was one site, the residents (sic) in the front and the commercial establishment in the back and whether they had access between . . . and if they didn’t have access between whether the access could be gained

. . . [T]herefore I don’t believe the department had the right or the argument at that point in time to close that driveway without negotiations with the property owner or with the town . . . Later when the signal was placed at that location and other . . . improvements were made, then the department had the legal right to close the driveway and a mandate to close it in order to make the intersection work.” [Affirmation by Kenneth M. Stenger, Exhibit D, pp 24-25].

Mr. Wickeri testified during his deposition[2] that during his involvement in some capacity in the permit process that included, he estimated, “200 [permits] a year for 30 years”, he had experienced situations where a permit was issued that was conditioned on closure of a point of access to a State highway on property not owned by the applicant. [Affirmation of Kenneth M. Stenger, Exhibit G, pp 7, 11]. With respect to fulfilling such a condition, Mr. Wickeri said, when asked, that it would be the responsibility of the permit applicant. [Ibid. p 11]. Other than with regard to the permit granted here, Mr. Wickeri could not recall, when further queried, any instance where the DOT closed or forced the relocation of a point of access to a State highway, in connection with a permit that was conditioned upon closure or relocation of a non-permittee’s point of access to a State highway, where the condition had not been fulfilled by the permittee. [Ibid. pp 12-13]. He indicated that “[it] was not the normal procedure” for the DOT to undertake closure or relocation, although he first testified that he thought it “happened a couple of times.” [Ibid. p 12]. By way of explanation, he indicated that he did not “remember the specifics . . . [of other occasions] . . .”, but just knew “. . . there were times where we had to amend the permit to reflect the changes.” [Id.].

Referring to a letter Mr. Wickeri wrote to the consulting engineers on the project on February 19, 1999 [See Affirmation of Kenneth M. Stenger, Exhibit E], Mr. Wickeri explained that it was a summary of a meeting involving the project, and includes the notation that the access to Route 44 from Prestige Motors should be eliminated, as well as the access from other sites of concern. [Ibid. Exhibit G, pp 14-16]. His attention was drawn to a post script in that letter directed to Wilson Shook, the Town Planner for the Town of Poughkeepsie, saying “The Town’s help and support are needed to insure Adams, Prestige Motors, Cherry Hill and Canterbury Gardens are partners in this venture, as any one of them could possibly ‘block’ the plan we’ve presented.” He testified that what he meant by “block” was that it was possible that one of the “major players”, such as “Adams and Cherry Hill” would halt things in the absence of agreements, but in his view Prestige Motors was not a “major player.” He said that his understanding was that if no agreement was reached with Prestige, the DOT “had the right to close that driveway and to direct the contractor to close that driveway if no agreement was reached.” [Ibid. pp 15-18]. He thought that the DOT did not need approval from Prestige to close the driveway, since there was alternate, reasonable access via Cherry Hill Drive.

Subsequent correspondence he wrote to the consulting engineers on the project dated June 15, 1999 was also shown to Mr. Wickeri. [Affirmation of Kenneth M. Stenger, Exhibit E]. The letter reiterates the recommendation that the Prestige driveway be closed, and indicates the writer’s understanding that the negotiations over the driveway were ongoing. When asked what his thinking was at the time, Mr. Wickeri indicated that he hoped that the developer would “ . . . talk to Prestige Motors . . . because you couldn’t get a proper plan with the driveway where it was.” [Affirmation of Kenneth M. Stenger, Exhibit G, p 21]. Mr. Wickeri acknowledged that to his knowledge, the Claimants were not included in this discussion vis-a-vis the DOT, but rather were involved in discussions with the developer.

A letter dated November 9, 1999 written by Joseph Kirchhoff and directed to Mr. Wickeri was shown to the witness. [Affirmation of Kenneth M. Stenger, Exhibit E]. In the letter, Kirchhoff states: “The plans for the . . . project show the driveway owned by Prestige Autobody, along Route 44, to be closed. I spoke with the owner several times and he objects to this decision. Please provide a clarification on this issue.” [Id.]. Mr. Wickeri could not say what he did in response to the letter. [Affirmation of Kenneth M. Stenger, Exhibit G, p 24]. He said that “at some point” he involved himself in negotiations between the developer and Mr. Zahurak, but did not recall it as related to that letter.

Mr. Wickeri confirmed that the decision of December 3, 1999 to turn on the signal would not have been his to make. [Affirmation of Kenneth M. Stenger, Exhibit G, p 25]. He viewed himself as the person who issues the permit, and that others, such as a permit inspector, then determines whether there has been compliance. In terms of the pecking order, he knew that at some points during his job tenure inspectors would report to him, but he could not recall whether an inspector would likely report to him at that time. Asked about the placement of barrels at the end of Claimants’ driveway on December 3, 1999, he said he could not recall any involvement in that process. [Ibid. p 26]. Mr. Wickeri also explained that there would have been two permits at issue: one involving the construction and another involving the signalization; and two different inspectors to inspect the work. [Ibid. p 27]. Again, he could not recall if such inspectors would have reported to him at that time. [Id.]. Shown Ameribrit’s December 8, 1999 letter to Mr. Fitzpatrick, indicating that they could not resolve matters with Mr. Zahurak, and asking the DOT to eliminate the permit requirement of closing Claimants’ driveway, Mr. Wickeri said that although he recalled seeing it, he could not recall the DOT’s response to it. [Ibid. p 28].

Finally, in an appraisal report submitted with Claimants’ papers, R. Peter Hubbell, Jr., Claimants’ expert appraiser, discusses the effect of the “appropriation” of Claimants’ driveway access to State Route 44 upon the value of Claimants’ property. [Affirmation by Kenneth M. Stenger, Exhibit K]. He opines that as of the date of the “taking”, noted as December 10, 1999, the value of the property before “taking” - inclusive of the portion of the property devoted to the single family residence, and to the light industrial building - was $450,000.00. [Id.]. The market value he denotes in the “after” scenario, and as a “mixed use” parcel, is $366,000.00, resulting in damages attributable to the “loss of driveway access” in the amount of $84,000.00. [Id.]. In the initial summarizing part of the appraiser’s report, he indicates that the highest and best use in the before situation is “A single family residence and light industrial (auto body shop) situated on separate lots.” Mr Hubbell then indicates that the highest and best use in the after situation is “Light industrial (auto body shop) with accessory single family residence.” [Id.].

In their Claim, filed with the Clerk of the Court on April 22, 2002, Claimants set forth five causes of action.[3] The remaining cause of action is one for de facto appropriation, based on the activation of the traffic light, and the related intentional closure of Claimants’ direct access to State Route 44, allegedly rendering their property unsuitable for its highest and best use. The Claim was served on the Office of the Attorney General on May 23, 2002. [Exhibit 5, Affirmation of J. Gardner Ryan dated September 30, 2003].
Discussion and Conclusion
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

What constitutes de facto appropriation has been described in detail by the Court of Appeals. See City of Buffalo v J.W. Clement Company, Inc., 28 NY2d 241 (1971). In a case involving the City of Buffalo’s announcement of an intent to condemn properties and the alleged diminution in their value thereafter, the Court said “. . . the concept of de facto taking has traditionally been limited to situations involving a direct invasion of the condemnee’s property or a direct legal restraint on its use . . .(citations omitted).” City of Buffalo v J.W. Clement Company, Inc., supra at 253. The elements of the cause of action were stated therein, with the Court announcing “. . . a de facto taking requires [either] [1] a physical entry by the condemnor, [2] a physical ouster of the owner, [3] a legal interference with the physical use, possession or enjoyment of the property, or [4] a legal interference with owner’s power of disposition of the property.” City of Buffalo, supra at 255.

De facto appropriation has also been discussed in the context of distinguishing such a cause of action from one for continuing trespass to determine whether the plaintiff’s claim was barred by res judicata. See e.g. O’Brien v City of Syracuse, 54 NY2d 353 (1981). The Court stated: “De facto appropriation does not involve a proof of title in the governmental defendant. Rather, de facto appropriation, in the context of physical invasion, is based on showing that the government has intruded onto the citizen’s property and interfered with the owner’s property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner . . . (citations omitted).” O’Brien v City of Syracuse, supra at 357.[4] Where, as here, there has been no physical invasion, the question is the degree of interference with an owner’s property rights and whether the consequences of that interference establish a compensable de facto taking, or the mere inconvenience of regulation. See Penn Central Transp. Co. v City of New York, 42 NY2d 324 (1977), affd 438 US 104, rehearing denied, 439 US 883 (1978). Even so, compensation is available if the regulatory act goes “too far”, and substantially destroys the conflicting property interest of the abutting landowner.

Any property right Claimants have to access to the State highway, is always circumscribed by the paramount State interest in maintaining safe roadways. The right, in any event, is limited to reasonable access to the State highway, not the right to a particular access point. Cities Service Oil Co.v City of New York, 5 NY2d 110, rearg denied, 5 NY2d 1041, cert denied, 360 US 934 (1959). Thus, for example, when New York City placed a bus stop in front of plaintiffs’ gasoline station it did not constitute an unreasonable interference with plaintiffs’ right of ingress or egress. Cities Service Oil Co. v City of New York, supra. Although the gas station plaintiffs asserted that their “right” of ingress and egress was a paramount property right, the Court of Appeals rejected that notion stating that rather than the abutting landowner’s access being the superior property right, it is the municipality for the benefit of the public at large that has the paramount right to the use and control of the streets. Cities Service Oil Co. v City of New York , supra. The Court said: “To promote and facilitate travel on street and highway, a municipality may, therefore, in the exercise of an unquestioned governmental function, regulate and control traffic and public transportation. Unless arbitrary and capricious, such an act ‘will not be restrained nor will the courts assume the management and control of [the] highways’. . . (citation omitted).” Cities Service Oil Co. v City of New York, supra at 115.

Similarly, in Randall v State of New York, 75 AD2d 906 (3d Dept 1980), a property owner who operated a truck and automobile sales business and also maintained his residence on property adjacent to a State service road could not recover damages when the DOT changed the designation of the service road to a one-way street, since there had been no encroachment on his property, or destruction of suitability of access. Despite the fact that those desiring entry to his property would now have to travel a circuitous route, this was viewed as an inconvenience that was not compensable. Randall v State of New York, supra at 907.

Even in a case involving a direct appropriation of a small portion of Claimants’ property, when the Claimants sought consequential damages for the alleged inadequacy of access caused by the reconstruction of a State highway, that portion of the award ascribable to the access issue was reduced by the Appellate Division, whose determination was affirmed by the Court of Appeals. Bopp v State of New York, 19 NY2d 368 (1967). Claimants in Bopp v State of New York, supra operated a motel-lodge and restaurant directly across a road leading off State Route 28 to the Belleayre recreational area. In addition to appropriating a small portion Claimants’ property for the reconstruction, the State of New York closed off the area of Route 28 directly adjacent to their lodge. This would have cut off the Claimants’ access to the State Highway entirely, except that the State also constructed an additional access road, connecting a portion of the old Route 28 to the new Route 28 to the west of Claimants’ property. Claimants’ property was no longer visible from the new Route 28, however, and the “. . . access road required a sharp turn off the new Route 28. The claimants’ property was some 700 to 800 feet from that turnoff.” Bopp v State of New York, supra at 371. After these changes, the Claimants could not profitably continue the operation of the motel-lodge and restaurant, and the property’s use was changed to a summer residence, except during the ski season when overflow clients from lodges nearby could stay. Although the Court of Claims found that the highest and best use had been reduced, the appellate courts disagreed. The Court of Appeals said: “. . . damages resulting from circuity of access to the claimants’ property as well as damages incurred because traffic no longer passes the claimants’ property are not compensable.” Bopp v State of New York, supra at 371. The Court continued:
“[W]e wish to make clear what we believe to be the law in this State regarding damages incurred by the owner of property located on a State highway, with unlimited access thereto, when a new highway is constructed which no longer affords the property owner direct access to the State highway but requires travel on a new or old access route to the new highway.

Under these circumstances the owner of the property is not entitled to damages because access is no longer as direct as it once was or because the new or remaining access is less than ideal . . ..(citations omitted). Nor are damages recoverable because traffic no longer passes in front of the claimant’s property or because his property is no longer visible to those traveling on the main highway . . . ” Bopp v State of New York, supra at 372. See also Selig v State of New York, 10 NY2d 34 (1961).[5]

As synthesized in Priestly v State of New York, 23 NY2d 152, 156 (1968), the distinction between what access is merely circuitous, versus what is not only circuitous but unsuitable - the latter status rendering the change compensable - is whether the remaining access “ . . . is inadequate to the access needs inherent in the highest and best use of the property involved.” Thus in Priestly v State of New York, supra in addition to the direct damages involved in the taking of a portion of Claimants’ 80-acre tract, Claimants were entitled to consequential damages associated with the unsuitability of access to the parcel associated with its highest and best use as a residential development, as established by expert testimony.

As noted more recently, suitability of access is a fact issue. Lake George Associates v State of New York, 7 NY3d 475 (2006). Framing a more difficult issue than the one presented here, but nonetheless relevant to this claim, the Court of Appeals in Lake George Associates v State of New York, supra said “We are asked to determine whether the State, in its appropriation of claimant’s and its neighbors’ land for the purpose of improving an abutting highway and reestablishing access pursuant to Highway Law §10 (24-d), deprived claimant of a legal right of access to the public road. We hold that the appropriation of land, under these circumstances, creates a legal, enforceable right of access to the driveways and turning lanes on the neighboring properties and to the public roads, and thus that consequential damages are not warranted.”

Subsumed within its analysis, however, were considerations of access pertinent here. The Court said that the lower courts had found that Claimant had suitable access, and that such a finding rested on their “. . . conclusion that automobiles could enter and leave claimant’s property by means of the easements that the State acquired . . . [from neighboring landowners]. Claimant maintain[ed] that the State . . . failed to give it an enforceable legal right in these easements. Thus, claimant . . . [said] that it . . . [did] not have legal access to its premises, and that this undermine[d] its marketable title by diminishing the value of its premium corner location and by creating uncertainty . . . [C]laimant posit[ed] that it . . . [was] entitled to consequential damages in addition to the direct damages assessed by the Court of Claims.” In disagreeing with Claimant’s argument, the Court of Appeals summarized:
“Property owners are entitled to consequential damages when the State’s appropriation of their property results in ‘the loss of their right to enter and exit their property’ . . . (citations omitted) . . . [D]amages must be paid unless the condemnee retains ‘legal access’ – i.e. a legally enforceable right to entry and exit. Damages are to be quantified based on a calculation of the damages at the time of the taking with no effect given to subsequent efforts to reestablish access . . . (citations omitted). This principle serves as strong incentive for the government to plan carefully and take only what is necessary or otherwise be subject to consequential damages . . . (citation omitted).

Although legal access is required and damages are to be fixed at the point of the taking, legal access may sometimes exist without a formal deed or conveyance to the claimant. While an explicit conveyance of access rights is generally preferable, the failure to do so does not negate the existence of such a legal right of access . . . [A]ccess is available as a matter of law to abutting landowners, subject only to reasonable police power limitations . . . (citation omitted).”

When the Lake George Court then examined the takings at issue, it determined that when the State took permanent easements on the adjoining properties reserving to the owners of each property the right of using driveways, its intent was to reestablish public access to the retail area, and no formal deed was required to create a legal right in Claimant when read in conjunction the Highway Law provision pursuant to which the State had appropriated the property. Notably, this analysis stemmed from the authority by which the State had taken the property, and was contrasted with another case where compensation was allowed when the taking was pursuant to the former Grade Crossing Elimination Act of 1928 involving a broad range project to change Long Island Rail Road track crossings. See Pollack v State of New York, 41 NY2d 909 (1977)[6]; cf. Orchard Grove of Dutchess, Inc. v State of New York, 1 Misc 3d 810 (Ct Cl 2003).[7]

More directly on point, in terms of the procedural posture at which this claim is poised, is Chemung Canal Trust Co. v State of New York, 90 AD2d 889 (3d Dept 1982), involving the State’s appropriation of one of three streets surrounding Claimant’s property, from which Claimant operated a six-story bank and office building containing two drive-in teller structures. Claimant sought consequential damages based upon its loss of access to the street that allowed clients entry to one side of the drive-in teller structures. The State’s motion to dismiss the claim was denied, because Claimant submitted its president’s affidavit indicating that commercial banks required drive-in facilities to be competitive, and giving further detail as to how access to the remaining streets “. . . was not merely inconvenient but unfeasible for use of claimant’s drive-in teller facilities, and further stat[ing] that after the taking, the bank had to acquire additional property and make extensive improvements in order to continue its drive-in teller services.” Chemung Canal Trust Co. v State of New York, supra at 890. The Court said: “Such evidence could support a finding that the highest and best use of claimant’s property was as a bank with drive-in teller facilities and that the access remaining after the taking of State Street was unsuitable . . . (citations omitted).” cf. La Briola v State of New York, 36 NY2d 328 (1975).

The decision to place a traffic signal at a particular location is exclusively the State’s to make, and whatever steps it took in the permitting process are simply not within this Court’s purview, as was previously determined.[8] The complementary effect of that determination, to apply safety and engineering considerations whereby access to the state highway near an intersection controlled by a traffic signal is denied if it is within a given number feet of the signal, is also an aspect of the State’s police power. But as noted even by Defendant, establishing this cause of action is a matter of degree, not generally subject to summary determination.

If exercise of State regulatory power has gone “too far” it remains Claimants’ heavy burden to show that overreaching, by demonstrating as a matter of fact and law that the remaining access is more than merely circuitous, and that it is unsuitable to the property’s highest and best use. Claimants have largely devoted their presentation to the purported wrongfulness of conduct of the State in the permitting process, and in placing a curb in the State’s right-of-way, and in discussion of the solutions as an alternative to the closure of the driveway - including some of marginal legality - that were allegedly propounded by the private construction agent, Kirchhoff[9], and the - at first blush - heavy handed use of the police regulatory power by the State agency by its decision to alter the conditional permit.

The salient issue in establishing the elements of this cause of action, however, is whether the closing of the driveway was so “. . . unreasonable and so onerous as to be confiscatory,”1[0] and that the effect on the alleged denial of suitable access to maintain the property’s highest and best use entitles these Claimants to monetary compensation. These are questions of fact, and of credibility, not amenable to summary determination. It is not enough to have Claimants’ expert appraiser opine, in a report not subject to the examination the way a witness at trial would be examined, that the highest and best use changed, interestingly, from “single family residence and light industrial (auto body shop) situated on separate lots”, to “light industrial (auto body shop) with accessory single family residence.” The presentation defeats Defendant’s motion to dismiss, but it does not establish Claimants’ entitlement to judgment as a matter of law.

Accordingly, Claimants’ motion for summary judgment [M-72148] is denied, as is Defendant’s cross-motion to dismiss [CM-72271].

December 22, 2006
White Plains, New York

Judge of the Court of Claims

[1]. 17 NYCRR §125.5(b); See generally Vehicle and Traffic Law §1680; 17 NYCRR Chapter V, Uniform Traffic Control Devices.
[2]. The parties stipulated that Mr. Wickeri’s deposition would be admitted in evidence at the trial of the claim in lieu of his testimony.
[3]. The other causes of action, including a cause of action alleging a violation of Vehicle and Traffic Law §1681(c) prohibiting the expenditure of State funds to install traffic control devices to control entrances to private property, resulting in an intrusion upon Claimants’ constitutional right to bargain freely with the private developer over the valuable property right of access to State Route 44; a cause of action alleging discriminatory practices in the administration of an otherwise non-discriminatory law in violation of equal protection guarantees of the New York State and United States Constitutions; a cause of action alleging an unlawful exercise of the police power, in using it for the interest of a particular individual or entity as distinguished from acts done for the public good as a whole; and a cause of action alleging a violation of Claimants’ right to due process pursuant to the Fourteenth Amendment to the United States Constitution, were all dismissed in the 2004 Decision and Order premised upon, respectively, the fact that claims for money damages under the federal constitution were not cognizable in the Court of Claims, that injunctive relief was not available, and that alternative relief through the mechanism of an Article 78 proceeding reviewing the permitting process was available elsewhere.
[4].“[It] may be characterized as an aggravated form of trespass. The pertinent evidence in both actions is the same. The basic distinction lies in the egregiousness of the trespass and whether it is of such intensity as to amount to a taking.” O’Brien v City of Syracuse, supra, at 357.
[5]. In Selig v State of New York, 10 NY2d 34 (1961) as a result of construction of the New York State Thruway, Claimant’s frontage along Central Park Avenue in Yonkers, containing 4 stores, apartment buildings, and garages for tenants, changed so that the grade of the Thruway - that replaced the center part of Central Park Avenue - was much higher than that of the remaining avenue in front of Claimant’s property, and it was no longer possible to directly cross Central Park Avenue. Service roads allowed Thruway crossing, however vehicles traveling north on Central Park Avenue, for example, no longer had direct access to Claimant’s property, but needed to cross over at one of the service roads approximately 10 blocks further north, or 8 blocks to the south. In saying that any loss of direct access was not compensable, the Court of Appeals noted that Claimant “ . . . had free and uninterrupted access to Central Park Avenue South, 27 feet wide, which concededly remained at grade, as well as to . . . [crossing service roads]. Under the authorities, then, there was no change of grade as to her property, and claimant had no right, vested or otherwise, to abut upon a 100-foot-wide highway, nor to the continued passage of a heavy volume of traffic.” Selig v State of New York, supra at 41. See also Meloon Bronze Foundry, Inc. v State of New York, 10 AD2d 905 (4th Dept 1960)(change of grade crossing).
[6].Court of Appeals held, among other things, that an increase in the award to the owners was supported by the fact that the appropriation by the State was without reservation to the owners of a legal right of access to the public highway.
[7]. Property owner sought damages for appropriation by DOT of right-of-access that property had to limited-access state parkway. State’s motion to dismiss granted. The Court of Claims held, among other things, that owner had no express right-of-access; owner had no right-of-access through easement by necessity; adverse possession was not available against State.
[8].See generally Civil Practice Law and Rules §7801 et seq and §6301 et seq concerning provisional remedies.
[9]. See Affirmation of Kenneth M. Stenger, Exhibit J: Affidavit by Robert F. Zahurak, sworn to December 1, 2003, ¶12.
1[0]. See Affirmation of Kenneth M. Stenger, Exhibit F: Affirmation of J. Gardner Ryan, Assistant Attorney General, ¶¶ 38-40, submitted on prior motion for summary judgment to dismiss claim [M-67486].