
    Charles Vlachos et al., Respondents, v. State of New York, Appellant.
    (Claim No. 49888.)
   — Appeal from a judgment in favor of claimants, entered January 14, 1972, upon a decision of the Court of Claims. The State of New York made a partial taking of claimant’s property for the purpose of widening Montauk Highway in the Town of Islip, Suffolk County. The property in question consisted of approximately 37,053 so. ft. in two contiguous parcels, one zoned business and the other residential. The business zoned parcel fronted on Montauk Highway and was improved with a one-story diner constructed some five years prior to -the taking, at which time it was a going concern. The residentially-zoned parcel lay immediately to the rear of the diner. The appropriation consisted of 5,126 sq. ft. of land along the entire front to a depth of. 25 to 46 feet, which taking resulted in loss of all frontal parking space among other things. The setback of the diner was reduced to 10 feet at the point nearest to the highway which resulted in the • diner being in non-compliance with the local zoning laws. The total award of the court was $64,279 broken down as $15,378 for direct damage to land (this item is not questioned on appeal), $3,969 for direct damage to land improvements, and $44,932 for consequential damage to the remainder. The approach used by the court below in measuring consequential damages is unacceptable. It is based primarily upon a cost of cure, that is the cost of moving the diner back from its. present location to replace the loss of parking area and without any other supportive evidence to justify the sum awarded.. -Additionally, the sum determined for loss of land improvements is without the range of testimony and thus not supported by the record. Judgment modified, on the law and the facts, by reversing so much, thereof as awarded $3,969 for direct damage to land improvements and $44,932 in consequential damages and directing a new trial limited to the issues of direct damage to land improvements and consequential damages, and, as so modified, affirmed', without costs. Herlihy, P. J., Staley, Jr., Sweeney, Kane and Reynolds, JJ., concuur.  