Suing for Construction Damages Which Had Not Even Occurred Yet
In Gengarelly v. Glen Cove Urban Renewal Agency , 69 AD2d 524, 525, 418 N.Y.S.2d 790 (2nd Dept, 1979), claimant sought consequential damages for construction (of a parking lot which would block access to a loading dock) which had not even occurred yet.
In numerous other cases, awards for consequential damages nave been granted and upheld, even where the taking is followed some time later by an improvement that reduces or eliminates the claimant's access. (See Pollak v. State of New York, 50 AD2d 201, 377 N.Y.S.2d 259 [3rd Dept. 1975], aff'd 41 NY2d 909, 363 N.E.2d 342, 394 N.Y.S.2d 617 ; Cousin v. State of New York, 75 Misc 2d 1096, 348 N.Y.S.2d 806 (Ct of Claims 1972], aff'd 42 A.D.2d 1016, 348 N.Y.S.2d 253 [3rd Dept 1973]; Slepian v. State of New York, 34 AD2d 880, 312 N.Y.S.2d 338 [4th Dept., 1970]; Red Apple Rest v. State of New York, 27 AD2d 417, 280 N.Y.S.2d 229 [3rd Dept. 1967]; and Sukiennik v. State of New York, 56 Misc 2d 148, 288 N.Y.S.2d 766 (Ct of Claims 1966, aff'd no op. 29 A.D.2d 845, 288 N.Y.S.2d 866 [4th Dept. 1968], all of which involve construction subsequent -- sometimes years later -- to the taking, which construction diminished the claimants' access to their properties, and which supported claims for consequential damages.)
As stated in Gengarelly:
If the State's appropriation of highway-abutting land (true frontage), or the physical construction of the improvement itself, so impairs access to the remaining property that it can no longer sustain its previous highest and best use, then the State must pay consequential damages to the owner...a suitable means of access must be left an abutting owner or else he is entitled to compensation.