In re the City of New York — 56 A.D.2d 929

Majority

p. 929

In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property for the Nassau Expressway, in the Borough of Queens. Peter Grimm et al., Appellants. In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property for the Park at 133rd Avenue and 145th Street, in the Borough of Queens. Peter Grimm et al., Appellants.

In two condemnation proceedings, the petitioners (assignees of the condemnee Bru-Bar Holding, Inc.) appeal from an order of the Supreme Court, Queens County, dated August 10, 1976, which, inter alia, denied their motions to compel the Comptroller of the City of New York to pay them the condemnation awards which had been made and directed that the moneys be deposited in an interest-bearing account. Order affirmed, without costs or disbursements, and without prejudice to renewal of the petitioner’s motions at Special Term if the City of New York does not, within 60 days after entry of the order to be made hereon, move for an assessment of damages in its breach of contract action against Bru-Bar Holding, Inc., and proceed expeditiously to secure a determination thereof. The City of New York instituted a breach of contract action against Bru-Bar Holding, Inc., the petitioners’ assignor. Special Term granted summary judgment as to the corporation’s liability and directed that there be an assessment of the damages. Subsequently, the corporation was awarded a substantial sum of money in two independent condemnation proceedings, which awards have been assigned to the petitioners. The city has refused to pay the awards because of the pending long-term litigation with Bru-Bar Holding, Inc. Under the circumstances appearing in this record, we deem the order of Special Term to have been properly made, subject to the proviso

p. 930

set forth above. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.