N. LIGHTS SHOPPING CTR. v. State

15 N.Y.2d 688 (1965)

Northern Lights Shopping Center, Appellant, v. State of New York, Respondent. (Claim No. 34798.) Northern Lights Shopping Center, Appellant, v. State of New York, Respondent. (Claim No. 36697.)

Court of Appeals of the State of New York.

Argued October 5, 1964.

Decided January 7, 1965.

John F. Lawton and Francis D. McCurn for appellant.

Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for respondent.

Concur: Chief Judge DESMOND and Judges DYE, FULD, BURKE, SCILEPPI and BERGAN. Dissent: Judge VAN VOORHIS.

Orders affirmed, without costs.

Judge VAN VOORHIS dissents, in part, in the following memorandum: I conclude with the majority that the circle and weaving lane created by the construction of Interstate Highway Route 81, the one-way routing of traffic on Route 11 and County Highway 208 abutting the subject property, and other elements of alleged consequential damage are not compensable, except that I think that the right of access to Route 11 and County Highway 208 (as it existed before these changes were made) has been unreasonably restricted. Reasonable access to a highway is a property right which cannot be taken without payment of just compensation. The rule of reason in restricting access in the interest of public safety is established by Red Apple Rest. v. McMorran (12 N Y 2d 203), and I think that it has been transcended in this case. The circumstance that appellant has claimed more than it is entitled to receive should not obliterate this factor from consideration. I would remand the case for a separate determination of this element of consequential damage.