In re City of New York — 55 N.Y.2d 345

Majority

p. 345

In the Matter of City of New York, Appellant, Relative to Acquiring Title to Real Property for a Project Known as College Point Industrial Park Urban Renewal Project II, Stage II in the Borough of Queens. Harold Glantz et al., Doing Business as H.G.V. Associates, et al., Respondents.

Argued February 9, 1982;

decided April 1, 1982

p. 346

POINTS OF COUNSEL

Frederick A. O. Schwarz, Jr., Corporation Counsel (Morris Einhorn and Leonard Koerner of counsel), for appellant.

I. The valuation methods adopted and applied by the courts below are reviewable in this court. (Matter of Duchnowski, 31 NY2d 991 ; Matter of Rochester Urban Renewal [Patchen Post], 45 NY2d 1 ; Latham Holding Co. v State of New York, 16 NY2d 41 ; St. Agnes Cemetery v State of New York, 3 NY2d 37 ; Matter of City of New York [Atlantic Improve

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ment Corp.], 28 NY2d 465 ; Matter of City of New York [Shorefront High School — Rudnick], 25 NY2d 146 ; Matter of City of New York [Fifth Ave. Coach Lines], 22 NY2d 613 .) II. The fee award herein is based upon erroneous appraisal principles. III. It was error of law to base a fee award upon the value of income from an amusement park business. (Matter of County of Nassau [Colony Beach Club of Lido], 43 AD2d 45 , 39 NY2d 958 ; Banner Milling Co. v State of New York, 240 NY 533 , 269 US 582 ; Mitchell v United States, 267 US 341 ; Matter of City of Rochester [Smith St. Bridge Widening], 234 App Div 583 ; Matter of Gilroy, 26 App Div 314 ; City of Syracuse v Stacey, 45 App Div 249 ; Brainerd v State of New York, 74 Misc 100 ; Frontier Town Props. v State of New York, 58 Misc 2d 388 ; Matter of Cave v Zoning Bd. of Appeals of Vil. of Fredonia, 49 AD2d 228 ; Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137 .) IV. Erroneous reliance upon the value of amusement park earnings is not cured by combining it with a value dependent on sales of small lots in an ocean resort 20 miles away. (Matter of City of New York [Atlantic Improvement Corp.], 28 NY2d 465 ; Wheatfield Props. Co. v State of New York, 55 AD2d 1040 ; Matter of Port Auth. Trans-Hudson Corp. [Hudson Tubes Purposes], 48 Misc 2d 485 , 27 AD2d 32 , 20 NY2d 457 ; People ex rel. Lehigh Val. Ry. Co. v Burke, 247 NY 227 ; Matter of County of Westchester v P. & M. Materials Corp., 38 Misc 2d 734 , 20 AD2d 431 ; Matter of County of Nassau [Cohen], 39 NY2d 574 ; Matter of County of Suffolk [Firester], 37 NY2d 649 ; Matter of Port of N. Y. Auth. [Lincoln Tunnel — 450 W. 34th St. Corp.], 2 NY2d 296 ; Matter of City of New York [Fifth Ave. Coach Lines], 22 NY2d 613 .) V. It was error of law to award sound value for a restaurant building concededly a nonspecialty. (Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236 ; Matter of Rochester Urban Renewal Agency [Willsea Works], 48 NY2d 694 ; Matter of City of New York [Maxwell — Hand], 15 AD2d 153 , 16 NY2d 497 ; Matter of City of New York [First Elephant Estates — La Hermosa Church], 17 AD2d 317 ; Matter of City of New York [De Nigris — De Nigris Realty Corp.], 20 AD2d 42 ; City of Buffalo v Clement Co., 41 AD2d 41 ; Chiloway Charcoal v State of New York, 33 AD2d 712 , 28 NY2d 914 ; Matter of City of New York

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[White Castle Systems], 28 NY2d 812 .) VI. The court below erroneously held the City’s title to land formerly in the bed of tidal creeks defeasible herein. (Matter of City of New York [Mileau Corp.], 72 AD2d 745 .) VII. There was no basis in law for any severance damages here. (Clement Co. v City of Buffalo, 46 AD2d 994 , 38 NY2d 859 ; Matter of City of New York [Harlem Riv. Dr.], 202 Misc 540 ; Erly Realty Dev. v State of New York, 43 AD2d 301 , 34 NY2d 515 ; United States v Miller, 317 US 369 ; United States v Grizzard, 219 US 180 ; Sharp v United States, 191 US 341 ; United States v Honolulu Plantation Co., 182 F2d 172 , 340 US 820 ; Matter of City of New York [Allied Stores of N. Y.], 44 NY2d 965 ; Di Bacco v State of New York, 46 AD2d 461 ; Henner v State of New York, 32 Misc 2d 333 ; South Path Realty Corp. v State of New York, 35 AD2d 896 .) VIII. The court below erred in restricting the rule in Rose to partial takings. (Rose v State of New York, 24 NY2d 80 ; Matter of City of New York [Allen St.], 256 NY 236 ; City of Buffalo v Clement Co., 28 NY2d 241 ; Matter of City of New York [ Whitlock Ave.], 278 NY 276 ; Cosgrove v Troescher, 62 App Div 123 ; Matter of City of New York [Triborough Bridge], 249 App Div 579 , 274 NY 581 .)

M. Robert Goldstein for Harold Glantz and others, respondents.

I. The real estate award is supported by substantial evidence. The City states no valid issue of law, its supposed issues being based upon facts contrary to the affirmed findings of fact below, themselves supported by substantial evidence. (Sunnybrook Realty Co. v State of New York, 11 AD2d 888 ; Katz v State of New York, 10 AD2d 164 ; Kozecke v State of New York, 34 AD2d 599 ; Culver v State of New York, 35 AD2d 866 ; Matter of City of New York [Tompkins Sq. Urban Renewal Project — Fassler], 27 AD2d 810 ; Mobil Oil Corp. v State of New York, 55 AD2d 821 ; Matter of White Plains Props. Corp. v Tax Assessor of City of White Plains, 50 NY2d 839 ; Matter of Adcor Realty Corp. v Srogi, 54 AD2d 1096 , 41 NY2d 806 ; Matter of Sears, Roebuck & Co. v Derderian, 66 AD2d 777 , 46 NY2d 712 ; Matter of City of New York [Maxwell — Hand], 15 AD2d 153 , 12 NY2d 1086 , 16 NY2d 497 .) II. The City’s appeal as to the amusement park fixtures, based upon an issue not properly raised below, is limited to the recovery

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for damages to property not directly taken and thus consequentially damaged, affecting only 6 of the 15 respondents herein with fixture awards. There was no error of law in making those awards. (Matter of City of New York [East Riv. Dr.], 159 Misc 741 , 259 App Div 1007 , 284 NY 818 ; Matter of City of New York [Triborough Bridge], 159 Misc 617 ; Matter of Incorporated Vil. of Hempstead [Fichter — Hofstra Coll.], 280 App Div 801 , 894, 304 NY 870 ; Rose v State of New York, 24 NY2d 80 ; Cooney Bros. v State of New York, 24 NY2d 387 ; Queensboro Farm Prods. v State of New York, 6 Misc 2d 445 , 5 AD2d 967 , 5 NY2d 977 ; Matter of City of New York [Allied Stores of N. Y.], 44 NY2d 965 ; Erly Realty Dev. v State of New York, 43 AD2d 301 , 34 NY2d 515 ; Alcape Realty Co. v State of New York, 55 AD2d 1045 .) III. Should the court sustain the trial court’s decision in the 1972 taking then there are issues to be determined, not reached by the court below.

Herman Itskowitz and Alfred D. Jahr for Adventurers Whitestone Corp., respondent.

The fixture award made by the trial court to lessee respondent Adventurers White-stone Corp. in the sum of $195,750 was erroneous on its face and the court below, properly and pursuant to law and the record below, increased the said award by the sum of $44,100. (Matter of City of New York [Merrimaker Corp.], 51 AD2d 147 , 39 NY2d 710 ; McRea v Central Nat. Bank of Troy, 66 NY2d 489 ; Rose v State of New York, 24 NY2d 80 ; Jackson v State of New York, 213 NY 34 .)

OPINION OF THE COURT

On this appeal, the City of New York (City) challenges the validity of various awards made to claimants for property condemned by the City as part of the College Point Industrial Park Urban Renewal Project.

Claimant, H.G.V. Associates, owned and operated an amusement park in Queens County; other claimants operated amusement rides at the park; and claimant, Adventurers Whitestone Corp., leased and ran a restaurant located at the amusement park. The property was condemned by the City of New York and title vested with the City on April 4, 1974. Pursuant to the order of condemna

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tion, a proceeding was commenced in Supreme Court, Queens County, to determine the ownership of the property and the proper compensation to be awarded for the condemned property. The Appellate Division modified only as to two awards and affirmed as to the rest on the basis of the opinion at Supreme Court. The order of the Appellate Division should be affirmed.

The award for the value of claimant’s fee interest was properly formulated by the trial court. As the Appellate Division found, however, H.G.V. Associates is entitled to compensation for those damage parcels located on the former site of Mill Creek and Old Creek. The City did not enter any proof that these damage parcels were part of the creekbeds at the time the City acquired title to the creek as successor in interest to the Town of Flushing. There is, however, ample evidence that these tidal creeks frequently meandered. It would thus be improper to conclude that the creekbed is located on the same property today as when it was originally conveyed to the Town of Flushing pursuant to three colonial patents.

Moreover, the enactment of section D51-48.1 of the Administrative Code of the City of New York in 1956 made this property alienable. (Matter of City of New York [Mileau Corp.], 72 AD2d 745 .) Property owned by the City in its proprietary capacity which is alienable can be conveyed and the City must, when it condemns such property, provide appropriate compensation.

In this case, the claimants produced a deed covering this land. Of course, a deed alone would be insufficient to establish title if the property was, in fact, inalienable because the City held it pursuant to its governmental capacity. Such, however, is not the case here. Pursuant to the enactment of section D51-48.1, the City determined that the property was no longer necessary to the City’s governmental function of controlling tidal waters. Since the property was held by the City in its proprietary capacity, it could be and was declared alienable. As alienable property, it was possible that this land would be conveyed to a private citizen. Claimants having presented a deed to this property, and the City having raised no other objection

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to the validity of that deed, it was proper for the Appellate Division to award compensation for those damage parcels located in the dry creekbeds.

Similarly, the Appellate Division correctly modified the decree by increasing the fixture award to Adventurers Whitestone Corporation. The trial court had mistakenly applied this court’s holding in Rose v State of New York ( 24 NY2d 80 ) and limited the award to reasonable moving expenses. The proper award was the sound value of the fixtures situated on the property condemned by the City. (Matter of City of New York [Allen St.], 256 NY 236 .) It is constitutionally mandated that the sovereign will pay just compensation for property it takes by its powers of eminent domain. “Just compensation is properly measured by determining what the owner has lost.” (Rose v State of New York, 24 NY2d 80 , 87, supra.) Thus, a tenant in possession at the time of condemnation is entitled to compensation “for his interest in any annexations to the real property which but for the fact that the real property has been taken, he would have had the right to remove at the end of the lease.” (Matter of City of New York [Allen St.], 256 NY 236 , 243, supra.) However, if the tenant chooses to remove the fixtures for use in a new location and properly notifies the condemnor of his intention to remove the fixtures, he is only entitled to an award in the amount of either the difference between salvage value and the present value in place or the cost of removal, whichever is the lesser. (Rose v State of New York, 24 NY2d 80 , 88, supra.) Since this tenant did not opt to remove these trade fixtures, he is entitled to compensation in the amount of the sound value of the property condemned by the State. (Schoschinski, American Law of Landlord and Tenant, § 5.33; Matter of City of New York [Allen St.], supra; Matter of City of New York [Whitlock Ave.], 278 NY 276 ; United States v General Motors Corp., 323 US 373 ; Matter of City of New York [G & C Amusements], 55 NY2d 353 [decided herewith]; 2 Nichols, Eminent Domain [3d ed], § 5.83 [2].)

Accordingly, the order of the Appellate Division should be affirmed, with costs.

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Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

Cases cited

In re the Accounting of Duchnowski 31 NY2d 991 N.Y. 1973-02-07 p. 346
In re Rochester Urban Renewal Agency 45 NY2d 1 N.Y. 1978-06-13 p. 346
Latham Holding Co. v. State 16 NY2d 41 N.Y. 1965-07-09 p. 346
St. Agnes Cemetery v. State 3 NY2d 37 N.Y. 1957-05-23 p. 346
In re City of New York 28 NY2d 465 N.Y. 1971-06-09 p. 347
In re the City of New York 25 NY2d 146 N.Y. 1969-07-02 p. 347
In re the City of New York 22 NY2d 613 N.Y. 1968-10-10 p. 347
In re the County of Nassau 43 AD2d 45 N.Y. App. Div. 1973-11-26 p. 347
In re the County of Nassau 39 NY2d 958 N.Y. 1976-07-01 p. 347
Banner Milling Co. v. State 240 NY 533 N.Y. 1925-07-15 p. 347
Mitchell v. United States 267 US 341 SCOTUS 1925-03-02 p. 347
Brainerd v. State 74 Misc 100 N.Y. Ct. Cl. p. 347
Frontier Town Properties, Inc. v. State 58 Misc 2d 388 N.Y. Ct. Cl. 1968-12-12 p. 347
Cave v. Zoning Board of Appeals 49 AD2d 228 N.Y. App. Div. 1975-10-31 p. 347
Fairmeadows Mobile Village, Inc. v. Shaw 16 AD2d 137 N.Y. App. Div. 1962-03-29 p. 347
Wheatfield Properties Co. v. State 55 AD2d 1040 N.Y. App. Div. 1977-01-21 p. 347
In re Port Authority Trans-Hudson Corp. 48 Misc 2d 485 N.Y. Sup. Ct. 1965-12-10 p. 347
In re Port Authority Trans-Hudson Corp. 27 AD2d 32 N.Y. App. Div. 1966-12-30 p. 347
In re the Port Authority Trans-Hudson Corp. 20 NY2d 457 N.Y. 1967-10-31 p. 347
People ex rel. Lehigh Valley Railway Co. v. Burke 247 NY 227 N.Y. 1928-01-20 p. 347
County of Westchester v. P. & M. Materials Corp. 38 Misc 2d 734 N.Y. Sup. Ct. 1963-03-28 p. 347
County of Westchester v. P. & M. Materials Corp. 20 AD2d 431 N.Y. App. Div. 1964-03-09 p. 347
In re County of Nassau 39 NY2d 574 N.Y. 1976-05-13 p. 347
In re County of Suffolk 37 NY2d 649 N.Y. 1975-10-30 p. 347
In re Port of New York Authority 2 NY2d 296 N.Y. 1957-01-24 p. 347
Great Atlantic & Pacific Tea Co. v. Kiernan 42 NY2d 236 N.Y. 1977-07-05 p. 347
In re Rochester Urban Renewal Agency 48 NY2d 694 N.Y. 1979-10-16 p. 347
In re City of New York 15 AD2d 153 N.Y. App. Div. 1961-12-21 p. 347, p. 348
In re the City of New York 16 NY2d 497 N.Y. 1965-04-22 p. 347, p. 348
In re the City of New York 17 AD2d 317 N.Y. App. Div. 1962-12-04 p. 347
In re the City of New York 20 AD2d 42 N.Y. App. Div. 1963-12-12 p. 347
City of Buffalo v. J. W. Clement Co. 41 AD2d 41 N.Y. App. Div. 1973-02-23 p. 347
Chiloway Charcoal, Inc. v. State 33 AD2d 712 N.Y. App. Div. 1969-11-13 p. 347
Chiloway Charcoal, Inc. v. State 28 NY2d 914 N.Y. 1971-05-13 p. 347
In re the City of New York 28 NY2d 812 N.Y. 1971-04-14 p. 348
J. W. Clement Co. v. City of Buffalo 38 NY2d 859 N.Y. 1976-02-10 p. 348
In re the City of New York 202 Misc 540 N.Y. Sup. Ct. 1952-04-10 p. 348
Erly Realty Development, Inc. v. State 43 AD2d 301 N.Y. App. Div. 1974-01-24 p. 348, p. 349
States v. Miller 317 US 369 SCOTUS 1943-01-04 p. 348
United States v. Grizzard 219 US 180 SCOTUS 1911-01-03 p. 348
Sharp v. United States 191 US 341 SCOTUS 1903-11-30 p. 348
Texas & New Orleans Railroad v. Fletcher L. Yarbrough & Co. 340 US 820 SCOTUS 1950-10-09 p. 348
Di Bacco v. State 46 AD2d 461 N.Y. App. Div. 1975-01-16 p. 348
Henner v. State 32 Misc 2d 333 N.Y. Ct. Cl. 1962-01-31 p. 348
Rose v. State 24 NY2d 80 N.Y. 1969-02-20 at 87, at 88 p. 348, p. 349, p. 351
In re the City of New York 256 NY 236 N.Y. 1931-05-12 at 243 p. 348, p. 351
City of Buffalo v. J. W. Clement Co. 28 NY2d 241 N.Y. 1971-04-08 p. 348
In re City of New York 278 NY 276 N.Y. 1938-07-07 p. 348, p. 351
In re City of New York 274 NY 581 N.Y. 1937-06-01 p. 348
Katz v. State 10 AD2d 164 N.Y. App. Div. 1960-03-28 p. 348
Kozecke v. State 34 AD2d 599 N.Y. App. Div. 1970-03-11 p. 348
Culver v. State 35 AD2d 866 N.Y. App. Div. 1970-11-12 p. 348
White Plains Properties Corp. v. Tax Assessor 50 NY2d 839 N.Y. 1980-05-29 p. 348
Sears, Roebuck & Co. v. Assessor of White Plains 66 AD2d 777 N.Y. App. Div. 1978-12-04 p. 348
In re City of New York 12 NY2d 1086 N.Y. 1963-04-04 p. 348
In re City of New York 159 Misc 741 N.Y. Sup. Ct. 1936-05-29 p. 349
In re the City of New York 159 Misc 617 N.Y. Sup. Ct. 1936-05-29 p. 349
Cooney Bros. v. State 24 NY2d 387 N.Y. 1969-04-16 p. 349
Queensboro Farm Products, Inc. v. State 5 NY2d 977 N.Y. 1959-02-26 p. 349
In re the City of New York 51 AD2d 147 N.Y. App. Div. 1976-02-09 p. 349
Sullivan v. Brevard Associates 66 NY2d 489 N.Y. 1985-11-19 p. 349
Jackson v. State 213 NY 34 N.Y. 1914-11-10 p. 349
United States v. General Motors Corp. 323 US 373 SCOTUS 1945-01-08 p. 351
In re the City of New York 55 NY2d 353 N.Y. 1982-04-01 p. 351