Opinion
November 27, 1972
In this condemnation proceeding, (1) the condemnor, the City of New York, appeals from a first, separate and partial final decree of the Supreme Court, Richmond County, dated October 8, 1971, which awarded $570,485 to claimant Broadway Cary Corp., the owner of Damage Parcel No. 1, and $367,800 to claimant Robert R. Zeiler, the owner of Damage Parcels 2, 3 and 4; and (2) each of said claimants appeals from the portion of the decree which makes the award to it or him. Decree modified, on the law and the facts, by reducing the award to Broadway Cary Corp. to $385,000 and the award to Robert R. Zeiler to $271,200. As so modified, decree affirmed, without costs. The claimants failed to adduce any evidence of probative force and effect which would establish their contention that there was a reasonable probability that they or either of them could have erected a modern community shopping center on the condemned property at the time of condemnation or shortly thereafter. or that they could have sold their properties for such purpose. Nor was there any proof of any ante litem plan by either claimant for such use of their condemned properties. In addition, there was no proof adduced by either of the claimants as to a study of the economic feasibility of such a shopping center or the evaluation thereof. The only valid evidence of the best use to which these properties could be put at the above-mentioned time and of their fair market value on the appropriation date was given by the condemnor's witness; and this is adopted (cf. Triple Cities Shopping Center v. State of New York, 26 A.D.2d 744, affd. 22 N.Y.2d 683; Matter of City of New York [ Shorefront High School — Rudnick], 25 N.Y.2d 146). Latham, Acting P.J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.