City of New York, Matter of

• Decision Date: 27 December 1983
• Docket Number: No. 2,No. 4,No. 3,No. 1,1,2,3,4
• Citation: 98 A.D.2d 166,471 N.Y.S.2d 105
• Parties: In the Matter of The CITY OF NEW YORK, relative to acquiring title, etc., for Nassau Expressway in the Borough of Queens, City of New York, etc. (Peter Grimm, et al., appellants; The City of New York, Respondent.) ProceedingIn the Matter of The CITY OF NEW YORK, relative to acquiring title, etc., for 135th Avenue in the Borough of Queens, City of New York, etc. (Peter Grimm, et al., Appellants; The City of New York, Respondent.) ProceedingIn the Matter of The CITY OF NEW YORK, relative to acquiring Permanent Easements in Connection with Nassau Expressway in the Borough of Queens, City of New York, etc. (Bru-Bar Holding, Inc., Appellant-Respondent; The City of New York, Respondent-Appellant.) ProceedingIn the Matter of The CITY OF NEW YORK, relative to acquiring title for a Park in the Borough of Queens, City of New York, etc. (Peter Grimm, et al., Appellants; The City of New York, Respondent.) Proceeding
• Court: New York Supreme Court — Appellate Division

Page 105

471 N.Y.S.2d 105

98 A.D.2d 166

In the Matter of The CITY OF NEW YORK, relative to acquiring

title, etc., for Nassau Expressway in the Borough of Queens,

City of New York, etc. (Peter Grimm, et al., appellants;

The City of New York, Respondent.) Proceeding No. 1

In the Matter of The CITY OF NEW YORK, relative to acquiring

title, etc., for 135th Avenue in the Borough of Queens, City

of New York, etc. (Peter Grimm, et al., Appellants; The

City of New York, Respondent.) Proceeding No. 2

In the Matter of The CITY OF NEW YORK, relative to acquiring

Permanent Easements in Connection with Nassau Expressway in

the Borough of Queens, City of New York, etc. (Bru-Bar

Holding, Inc., Appellant-Respondent; The City of New York,

Respondent-Appellant.) Proceeding No. 3

In the Matter of The CITY OF NEW YORK, relative to acquiring

title for a Park in the Borough of Queens, City of New York,

etc. (Peter Grimm, et al., Appellants; The City of New

York, Respondent.) Proceeding No. 4

Supreme Court, Appellate Division,

Second Department.

Dec. 27, 1983.

Samuel Goldstein & Sons, New York City (Samuel Goldstein and M. Robert Goldstein, New York City, of counsel), for appellants in Proceedings Nos. 1, 2 and 4 and appellant-respondent in Proceeding No. 3.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Morris Einhorn, Leonard Koerner and Isaac Salem, New York City, of counsel), for respondent in Proceeding Nos. 1, 2 and 4 and respondent-appellant in Proceeding No. 3.

Before DAMIANI, J.P., and GIBBONS, O'CONNOR and BOYERS, JJ.

PER CURIAM.

These appeals concern four consolidated condemnation proceedings in the Supreme Court, Queens County, in which decrees were entered on January 19, 1976, following a joint trial before the late Justice HAROLD TESSLER, and a further hearing before Justice MICHAEL A. CASTALDI, on damages for successive takings of claimants' land in the vicinity of John F. Kennedy Airport.

In Proceeding No. 1, on September 30, 1963, the City of New York (hereinafter the city), acquired title to land for the construction of the Nassau Expressway. Bru-Bar Holding, Inc. (hereinafter Bru-Bar), Seymour Barash and Peter Grimm were awarded $105,621 and two separate one dollar awards for land in the bed of a street.

In Proceeding No. 2, the city, on June 29, 1964, acquired title to land for the widening of 135th Avenue. Barash and Grimm were awarded $6,152.

In Proceeding No. 3, the city, on November 1, 1965, acquired permanent easements in connection with the Nassau Expressway. Bru-Bar, Barash and Grimm were awarded $77,270 for damage parcels E 2-16 and one dollar for E 1.

In Proceeding No. 4, the city, on October 18, 1968, acquired title to land for a park. Bru-Bar was awarded $133,750.

On December 30, 1968 Bru-Bar assigned its right to awards to its stockholders, Seymour Barash, Peter Grimm and The Cardiff Corporation. Thereafter, in or about January, 1969, the stockholders assigned their rights to the award in Proceeding No. 3 to Wilbur F. Breslin and Robert Frankel.

Notices of appeal were filed as follows: Proceeding No. 1--appeal by Peter Grimm, Seymour Barash and The Cardiff Corporation; Proceeding No. 2--appeal by Peter Grimm and Seymour Barash; Proceeding No. 3--appeal by Bru-Bar and cross-appeal by the city; Proceeding No. 4--appeal by Peter Grimm, Seymour Barash and The Cardiff Corporation.

During the pendency of the appeals, Bru-Bar's appeal and the city's cross appeal in Proceeding No. 3 were withdrawn by those parties, against the protests of the attorneys for Bru-Bar, The Cardiff Corporation, Grimm and Barash. We find, however, that the facts, contentions and issues in that third proceeding are inextricably interwoven with the appeals in the first, second and fourth proceedings. Accordingly, notwithstanding the withdrawal of the appeal and cross appeal from the decree in the third proceeding, we will discuss the facts, contentions, issues and nature of the appeal and cross appeal in that proceeding, in The appeals before us concern the alleged inadequacy of the amounts of the awards and the failure to grant consequential damages.

the context of the appeals in the first, second and fourth proceedings.

In these proceedings claimants sought awards totaling nearly $2,000,000.

In rendering a decision after trial, Special Term (CASTALDI, J.), aptly noted that "[t]he many issues involved in these four proceedings and the contentions of the parties with respect to each of the issues verily run the gamut of condemnation law".

General Issues

The principal questions presented by the appeals are (1) the weight to be given to, and permissible utilization of, prices paid for land sold at city auction sales, (2) the right to consequential damages for construction by the city of an expressway on an embankment 28 feet above the physical grade at claimants' property, thus allegedly impairing a valuable airport view from the hotel planned for the subject site, (3) the right to consequential damages for alleged deprivation of access to a major road allegedly caused by the taking of a strip of claimants' property for slope easements for the expressway, (4) the propriety of valuing residentially zoned land as if a part of a nearby commercially rezoned parcel on the basis that there was a reasonable possibility that a variance could be obtained for the residentially zoned parcel to permit it to be used for accessory parking for the hotel to be constructed on the commercially rezoned parcel, and (5) the effect on claimants' damage assertions of restrictions imposed by the city in various auction deeds.

Overview

In view of the extreme length and complexity of the evidence, issues and briefs, we present the following overview prior to setting forth a more extended statement of the precise principal issues:

These appeals involve the dashed post World War II hopes of claimant Seymour Barash to assemble and develop a hotel and convention site on approximately 320,000 square feet of vacant land located near the north border of John F. Kennedy Airport. By the end of November, 1961 he had completed the lot assemblage on the main 260,000 square foot parcel (Parcel A) and owned a smaller 60,000 square foot parcel (Parcel B) nearby to the north, which he planned to use for accessory parking for the Parcel A site. Of the 106 lot assemblage constituting Parcel A, 48 lots were purchased from private sources. Barash testified that in November, 1961 he completed the assemblage of Parcel A with the purchase at city auction of the remaining lots. Various of the city auction deeds, however, contained provisions and restrictions which the city contends anticipated and precluded, as a matter of law, the type of damage claims made by the claimants arising from the grade of the newly constructed expressway and the taking of the slope easements.

In December, 1962, Barash obtained rezoning of the main site from a residential R 3-2 district to a commercial C 4-2 district except that certain lots in the anticipated right of way of the proposed expressway were left residentially zoned.

In September, 1963, Barash obtained necessary demapping of a key city street on Parcel A. Of paramount importance, however, is the fact that he had obtained the interest of a major hotel chain. Having reached this apex, however, he was then confronted with four successive condemnation proceedings, each of which took pieces of the property.

Thus, in 1963 the city took a part of Parcel A for construction of the Nassau Expressway, including its service road, North Conduit Avenue, as the latter was relocated and rebuilt north of its original location. The new expressway was thereafter built on an embankment 28 feet above the subject property, thereby allegedly physically placing the property "in a hole" behind a "Chinese wall", and depriving it of a valuable airport view.

In 1964, the city widened the street between Parcel A and Parcel B, taking a further segment of Parcel A.

In 1965, the city took a further slice of Parcel A for slope easements for the North Conduit Avenue service road of the expressway. Claimants assert that this deprived the hotel site of access to North Conduit Avenue.

In 1968, the city took Parcel B for park purposes. Claimants contend that Parcel B could have been and would have been used for accessory parking for the Parcel A hotel and that the 1968 taking for a park reduced the size of the overall site holdings to a point below that which was feasible for the proposed hotel project.

Approximately 119,000 square feet had been taken by the four condemnation proceedings. Claimants contend that, in addition to direct and severance damages, they incurred consequential damages from loss of airport view caused by the embankment and the loss of access to North Conduit Avenue. The city contends that claimants incurred and are entitled to direct damages only. Following the 1968 taking of Parcel B for a park, the hotel chain withdrew. In 1969 Grimm, Barash and The Cardiff Corporation sold the approximately 233,000 square feet of remaining land to speculators at a price of $10 per square foot.

Special Term determined that the highest and best use of Parcel A was for a hotel-convention center complex, but that Parcel B must be valued on the basis of the then existing R 3-2 residential zoning. The court awarded direct damages only. It rejected all of claimants' demands for consequential damages caused by the airport-view-impairing embankment and by the alleged loss of access to North Conduit Avenue. The court also rejected claimants' assertion that the residentially zoned Parcel B should have been valued on the basis that there was a reasonable probability a variance would have been obtained to permit it to be used for accessory parking for the hotel to be erected on Parcel A.

In calculating the direct damages for the 35,207 square feet of Parcel A taken in Proceeding No. 1, the court looked to the purchase prices of the...