B & B Food Corp. v. State

— Appeal by the State of New York from a judgment of the Court of Claims (Lengyel, J.), dated June 15,1982, which, after a nonjury trial, was in favor of the claimant in the principal sum of $204,700. Judgment affirmed, without costs or disbursements. The Court of Claims was correct in refusing to limit damages, as proposed by the State, based upon the claimant’s failure to 894 accept a deed to a parcel of land contiguous to the subject property, which deed was offered to the claimant by the State subsequent to the appropriation of its property. A claimant’s right to compensation for property appropriated is to be measured and fixed as of the time of taking (see Wolfe v State of New York, 22 NY2d 292). Furthermore, the “cost to cure” theory of damages proffered by the State may not be used to mitigate consequential damages where the cure must be accomplished by going outside the tract in controversy (see Matter of County of Suffolk [Arved, Inc.], 63 AD2d 673; Gluckman v State of New York, 37 AD2d 870; St. Patrick’s Church v State of New York, 30 AD2d 473). Accordingly, the claimant is entitled to full damages as determined by the Court of Claims. Mollen, P. J., Titone, Weinstein and Rubin, JJ., concur.