Opinion
June 8, 1981
In a condemnation proceeding, the parties cross-appeal from a final decree of the Supreme Court, Queens County (Kassoff, J., upon the decree; Brown, J., upon the trial and opinions after trial), dated July 18, 1979, which made certain awards and denied others. Decree modified, on the law, by adding provisions (1) that the fee award made to Harold Glantz and Harold Vernon, doing business as H.G.V. Associates, a partnership, be increased by the amount of $196,783, and (2) that the damage award made to claimant Adventurers Whitestone Corporation be increased by $44,100. As so modified, decree affirmed, without costs or disbursements. In computing the fee award herein, the trial court excluded compensation for 17,523 square feet of real estate situated within the boundaries of what were found to be former beds of Mill Creek and Old Creek. These damage parcels are now dry and what remains of the waterways follows a different path today. Accordingly, we hold that compensation should have been made for these parcels as well. (See Matter of City of New York [Mileau Corp.], 72 A.D.2d 745.) Multiplying the area of these parcels by the unit value of $11.23 per square foot, which is derived from the remaining fee award and which amount we find to be justified by the trial record, an increase of the fee award of $196,783 is required. In making its fixture award to claimant Adventurers Whitestone Corporation, the trial court found, apparently, that since the items recognized as compensable trade fixtures, enumerated in the city's expert's appraisal under schedule B thereof, were readily removable from the condemned premises, the only compensation due and owing was the reasonable moving expenses, in accordance with the court's interpretation of Rose v State of New York ( 24 N.Y.2d 80). Since the taking at bar was direct rather than consequential, the formula prescribed in Rose (supra) is inapplicable, and compensation should have been awarded on the basis of full sound value. (See Matter of City of New York [Merrimaker Corp.], 51 A.D.2d 147; Matter of City of New York [Kerievsky], 57 A.D.2d 954, affd 44 N.Y.2d 974 on the memorandum at the App. Div.; cf. Rose v State of New York, supra). Accordingly, the fixture award must be increased by the difference between the amount the parties agreed was the sound value thereof and the amount awarded by the trial court, which we find to be $44,100. The issues raised by certain claimants have been rendered academic by our decision in the companion appeal in Matter of City of New York (G C Amusements) ( 82 A.D.2d 829). Damiani, J.P., O'Connor, Weinstein and Thompson, JJ., concur.