Opinion
2002-03230
Argued November 12, 2002.
March 3, 2003.
In a condemnation proceeding, the appeal is from an order of the Supreme Court, Westchester County (Rosato, J.), dated March 18, 2002, which granted the motion of the Village of Port Chester for a writ of assistance for possession pursuant to EDPL 405(A). Justice Sondra Miller has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c]).
Goldstein, Goldstein, Rikon Gottlieb, P.C., New York, N.Y. (Michael Rikon of counsel), for appellant.
John E. Watkins, Jr., White Plains, N.Y. (Liane V. Watkins of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The condemnor Village of Port Chester sought a writ of assistance to remove the appellant, Fabio Sorto, d/b/a Rinconcito Salvadoreno (hereinafter Sorto), from property obtained by eminent domain (see EDPL 405[A]). In support of its motion, the Village proffered evidence that the appellant was neither the owner nor the legal tenant of the property. Thus, the Village argued, the appellant was an "other occupant" of the property, not a "condemnee," and was subject to removal pursuant to EDPL 405(A) without payment of an advance payment (cf. New York State Urban Dev. Corp. v. MJM Exhibitors, 193 A.D.2d 523; Matter of City of New York [MHG Enterprises], 51 A.D.2d 798; Matter of New York State Urban Dev. Corp. [42nd St. Dev. Project], 166 Misc.2d 909). In opposition to the motion, the appellant failed to proffer competent evidence that he was entitled to compensation for fixtures in a restaurant located on the property, and therefore, was a "condemnee" who could not be removed without payment of an advance payment (see generally Matter of New York City [G C Amusements], 55 N.Y.2d 353). Accordingly, on the record made, a writ of assistance was properly granted.
The appellant's remaining contentions are not properly before this court or are without merit.
RITTER, J.P., S. MILLER, GOLDSTEIN and TOWNES, JJ., concur.