Hylan Flying Service, Inc. v. State , 49 N.Y.2d 840 ( 1980 )

49 N.Y.2d 840 (1980)

Hylan Flying Service, Inc., et al., Appellants,
v.
State of New York, Respondent. (Claim No. 54734.)

Court of Appeals of the State of New York.

Argued February 13, 1980. Decided March 20, 1980.

Robert P. Neilon and Robert F. Wood for appellants.

Robert Abrams, Attorney-General (Dennis Hurley and Shirley Adelson Siegel of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

MEMORANDUM.

The judgment appealed from should be affirmed, with costs. On this appeal taken pursuant to CPLR 5601 (subd [d]), we may review only the prior "non-final determination of the appellate division" upon which the appeal is predicated (CPLR 5501, subd [b]). Since the Appellate Division did not disturb the factual finding, made by the Court of Claims and based upon legally sufficient evidence, that the limited access to claimants' property was not caused by the taking, that factual determination is not subject to review in this court (see CPLR 5501, subd [b]). Given this factual determination the courts below properly concluded that claimants are not entitled to consequential damages stemming from the claimed lack of access. Nor are claimants entitled to damages for "cost to cure", since such damages are merely an alternative to consequential damages, available in certain limited cases, and may not be awarded where there is simply no basis for any consequential damages (see Mayes Co. v State of New York, 18 N.Y.2d 549). Finally, we conclude that the Appellate Division did not abuse its discretion by ordering a new trial due to its dissatisfaction with the evidence presented by claimants concerning the proper valuation of the property taken by the State.

Judgment affirmed.