
    Griffin A. Brooks et al., Appellants, v State of New York, Respondent.
    (Claim No. 53218.)
    Argued September 12, 1975;
    decided October 17, 1975
    
      
      Herman E. Gottfried and Joseph C. Shapiro for appellants.
    
      Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Ruth Kessler Toch of counsel), for respondent.
   Memorandum. The Appellate Division’s order of modification which reduced the condemnation award by the amount of consequential damages attributed to the diminution in value of the main restaurant building should be reversed. Since the award of consequential damages to the underlying land and the restaurant building was implicitly based on the same diminution of business, it was error for the Appellate Division to affirm consequential damages as to the former but not as to the latter. The State’s argument that the take-out portion of the restaurant was separable from the eat-in portion involves a divisibility which defies the reality of the situation.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted for a determination of consequential damages.

Jasen, J.

(dissenting). I would affirm the order of the Appellate Division. The Court of Claims found that the value of "the main restaurant building” had been reduced by $9,500. As the Appellate Division pointed out, there was no basis for this finding and, consequently, this item should be eliminated from the award.

The effect of a condemnation may be to diminish the business value of the remaining land and that reduction is properly compensable. (Wayside Nurseries v State of New York, 36 AD2d 212.) Indeed, in this case the claimants were awarded $2,500 for damage to their commercial site. However, the main restaurant building itself was unaffected by the State’s appropriation. Thus, the Court of Claims incorrectly awarded damages for loss to the building. Furthermore, there is no reason for construing the award as encompassing loss to the restaurant business, as opposed to the restaurant building, particularly where an award was made for damage to the commercial site.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur; Judge Jasen dissents and votes to affirm in a separate memorandum.

Order reversed, with costs, and case remitted to Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.  