Austin W. Bender, Jr. et al., as Executors of Austin W. Bender, Sr., Deceased, Respondents-Appellants, v. State of New York, Appellant-Respondent

Austin W. Bender, Jr. et al., as Executors of Austin W. Bender, Sr., Deceased, Respondents-Appellants, v. State of New York, Appellant-Respondent. (Claim No. 42065.) [MAJORITY] Judgment unanimously modified on the law and facts in accordance with the Memorandum, and as modified affirmed, with costs. New findings made and inconsistent findings reversed. Memorandum: The Trial Judge awarded $93,032 and interest for the direct taking, but found that there were no consequential or severance damages, and disallowed that portion of the claim. We disagree with that disallowance and find that the claimant suffered consequential damages in the amount of $17,413 and interest. We find as follows: Fair Market Value prior to appropriation: 73,438 square feet at $4.50 per square foot, $330,471; Fair Market Value after appropriation: 52,764 square feet at $4.17 per square foot, $220,026; Total Damage, $110,445; Less Direct Damage allowed, $93,032; Consequential Damages, $17,413. This last amount should be added to the award for the direct taking, making a total award of $110,445, plus interest. The highest and best available use to which the remainder, not appropriated, could have been put was substantially reduced by the appropriation. (Appeals from judgment of Court of Claims, for claimants on a claim for permanent appropriation.) Present—-Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.