Frankfater v. State

Herlihy, J. (concurring).

Under the circumstances, the question of the constitutionality of the statute, ‘'moral obligation ’ ’, or the establishment of ‘'misrepresentation ’ ’ need not be decided in disposing of the present claim.

The original claim alleged the appropriation of the questioned property by the State and sought $1,500 for the land taken and $4,000 consequential damages. That claim was ultimately dismissed following a decision by this court that the State was the owner of the property (17 A D 2d 515). After the passage of the enabling act the claim, in the same form and for the same relief, was refiled. This did not constitute a filing of a proper claim within 90 days pursuant to the intent and purpose of the act.

The sponsor of the proposed legislation, residing in Monticello and a member of the Assembly, stated in a memorandum in support of the proposed legislation, Homes, barns, outbuildings, wells, septic tank and trees had been built and planted in reliance upon the State’s representations of the three rod owner*235ship. The taking and removing of these improvements by the State without compensation constituted an outrageous and immoral injustice and imposes upon the innocent adjacent landowners tremendous injustice and unwarranted economic hardships.” No such proof was offered in this action.

The particular type of legislation must be strictly construed.

If we were to assume that there was some way a court could give vitality to the claim, there is another fatal defect. There is no proof of damages within the framework of the statute. The original $2,000 awarded by the Court of Claims was for direct and consequential damages for the land appropriated. The present award, as stated by the court, is a reinstatement of ‘'its original award amounting to $2,000 ”.

There is a right to settle and a right to litigate. The defenses available at the time of litigation need not necessarily enter into amicable settlement negotiations. The fact that here some of the property owners contiguous to the highway settled their claims does not, as to the present claimants, create “ outrageous and immoral injustice ” as stated above.

There is no basis in law or fact for the award. The judgment should be reversed and the claim dismissed.

Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in opinion Per Curiam, Herlihy, J., in a separate opinion, in which Gibson, P. J., Reynolds, Aulisi and Staley, Jr., JJ., concur.

Judgment and order reversed, on the law and the facts, and claim dismissed, without costs.