Garfield Homes, Inc. v. State

• Citation: 255 N.Y.S.2d 16,44 Misc.2d 738
• Decision Date: 18 December 1964
• Docket Number: 39750,Nos. 39736,s. 39736
• Parties: GARFIELD HOMES, INC., Claimant, v. The STATE of New York, Defendant. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 16

255 N.Y.S.2d 16

44 Misc.2d 738

GARFIELD HOMES, INC., Claimant, v. The STATE of New York, Defendant.

The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Claimant, v. The STATE of New York, Defendant.

Claim Nos. 39736, 39750.

Court of Claims of New York.

Dec. 18, 1964.

Alfred Wohl, Long Island City, for claimant Garfield Homes, Inc., by George M. Lehr and George R. Ruditz, Long Island City, of counsel.

Weisman, Celler, Allan, Spett & Sheinberg, New York City, for claimant Great Atlantic & Pacific Tea Co., Inc., by Barnett Dornbush and Roger Bloom, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., by John F. Dyer, Asst. Atty. Gen., of counsel, for the State of New York.

ALEXANDER DEL GIORNO, Judge.

On August 28, 1946, claimant Garfield Homes, Inc., (hereinafter called Garfield) bought the improved parcel in question. It was located on the nothwesterly corner of Willis Avenue and Jericho Turnpike, Floral Park, N. Y. It actually consisted of two parcels, one a parcel 50 feet, front and rear, by 125 feet on both sides which was improved with a taxpayer of like dimensions, used exclusively by claimant The Great Atlantic & Pacific Tea Company, Inc., (hereinafter called A & P) as a supermarket, and an adjoining lot on the rear which was 25 feet by 100 feet, the front 25 feet facing on the westerly side of Willis Avenue, which although contiguous to the improved lot was vacant and used for parking of cars. The taxpayer was brick on all sides except the westerly side, which was cement blocks.

The area of the land and the store directly affected by the appropriation was 6,250 square feet.

On October 30, 1959, the State took in fee the entire frontage along Jericho Turnpike to a depth of 18 feet on the easterly side and 19 feet on the westerly side of the building, comprising 925 square feet, and additionally acquired a temporary easement to permit the demolition of that portion of the building taken in fee. The easement extended across the entire 50 feet for 10 feet beyond the fee taking, comprising an area of 500 square feet.

The actual fee taking comprised 15% of the improved parcel, and the combined fee and temporary easement about 22% + thereof.

A & P had been a tenant since the year 1936.

Claimant's Exhibit 6 is the lease dated March 8, 1946, made between the prior owner and A & P, which ran from May 1, 1964 to April 30, 1950 at $4,000.00 per year, with three options to renew said lease for seven additional years with a maximum rent of $4,800.00 yearly.

On October 10, 1956 the two claimants entered into an agreement extending said lease from May 1, 1957 to April 30, 1964 at $6,500.00 yearly rental, with an option to renew for five more years at $7,099.00 yearly rental. This latter lease was operative on the date of vesting.

Subsequent to the vesting date, and to meet the circumstances arising from the taking, the claimants agreed in July, 1960, on the terms of a proposed lease in which A & P agreed to pay, beginning February 1, 1961, $9,000.00 yearly for ten years on condition that Garfield would rebuild the front of the store and extend the building and cellar to 125 feet, by using a portion of the rear lot. This work would have cost Garfield field $7,613.00 for the front and $11,890.00 for the rear extension and full basement (Claimant's Exhibit 10). However, A & P having requested a more elaborate rebuilding job (Claimant's Exhibit 9) which would cost more, claimants agreed on that basis on a prospective yearly rental of $10,200.00. This proposed lease was never executed by A & P, although negotiated by its Vice President in charge of the area, whose prerogative was to find locations and negotiate leases, among other things.

The lease of March 8, 1946 (Claimant's Exhibit 6) was on a form provided by A & P and it contained no provision for the abatement of rent in the event of condemnation.

It was agreed that, although the State served a Notice to Quit on A & P on July 9, 1959 to be effective by December 30, 1959, A & P remained in full, undisturbed possession to June 30, 1960 and paid its rent to Garfield to that time.

Towards the end of June, 1960 A & P, without consultation with the State or Garfield, through the use of its own Maintenance Department employees, dismantled the entire store, taking away what they thought could be reused and dumping the rest. In this regard it may be well to recall that Garfield had been willing to make an entrance door on the Willis Avenue side of the building to allow A & P to continue operating, but A & P rejected the proposal claiming it could not operate under those circumstances.

The testimony of Mr. John E. Andrews, then a Vice President of A & P who, as aforesaid, was in charge of stores in the area from Jamaica to Montauk, disclosed that up to about 1958, a 6,000 square foot store was considered adequate by A & P, but that since then larger stores up to 12,000 square feet are required by A & P for supermarkets.

Mr. Andrews testified that he did not know what became of the fixtures removed from the store and, although he stated the Maintenance Department had an inventory of such fixtures none was presented at the trial.

Mr. Andrews claimed that the store as now left by the appropriation was too short for their operation, although had the vesting not occurred he would have recommended the continuation of the five-year option period on the existing lease to April 30, 1969.

Regarding the A & P's claim for fixtures, A & P employed Mr. Arthur Schaff, an expert appraiser of fixtures, who made an inventory of the same in October, 1959, eight months before the A & P vacated the premises, which indicated then a sound value of $45,082.00 (Claimant's Exhibit 27). However, Mr. Schaff did not know what became of the fixtures thereafter, nor could he say which of the fixtures were in the part of the store taken by the State.

Rubin Garfinkel, Vice President of Garfield, testified that soon after the vesting the A & P asserted to him that the store was too small for them as a result of the taking. To permit continued operation, he offered to build an entrance on the Willis Avenue side, but the A & P refused the offer. However, Mr. Andrews, for A & P, agreed to negotiate a new lease based on a reconstituted store of 125 feet in length and a full cellar, to which we have alluded ante. The proposed lease was not accepted by the management of A & P. Mr. Andrews testified that during the course of the work there was no access to the building from Jericho Turnpike, although he conceded that there was a door from Willis Avenue.

The State offered a certificate of its District Engineer (State's Exhibit F), indicating that the completion of the demolition work on Jericho Turnpike was accepted by the State from the contractor on April 24, 1961. The testimony was clear that neither claimant thereafter made any move to reconstitute the building for the business of A & P or any other use.

The State erected a wall in front of the remaining portion of the building about March, 1, 1962 (State's Exhibit A). The building has remained vacant.

The State, as required by Section 30, Highway Law, subdivision 20, filed in the office of the Department of State a certificate of termination of the temporary easement on August 13, 1963.

The evidence also shows that there was pending in the Nassau County District Court an action for rent claimed to be due on the lease after June 30, 1960, instituted by Garfield against A & P.

It was undisputed that in 1957 the owner remodeled the whole store front while A & P extensively renovated the interior of the store; that the store had been a profitable one with net profits averaging better than $20,000.00 per year.

The experts for the owner as well as for the State agreed that the economic rent value for the feehold was $9,000.00, while the contract rent, as above stated, was $6,500.00 yearly to April 30, 1964 and $7,099.00 for the five years' optional renewal to April 30, 1969.

The owner, Garfield, claims (1) damages for that portion of the land and building appropriated, (2) damage to remaining land and building, (3) loss of rent on lease, (4) repairs to building and (5) rental value of temporary easement.

A & P claims as follows: (a) value of leasehold, (b) cost of removing fixtures, (c) depreciated value of fixtures removed, (d) loss of profits and (e) cost of reopening store. The last item, (e), was withdrawn at the beginning of the trial.

We have synopsized the various issues and factual elements presented at the trial in order to make clear the determinations to be made herein, as well as to offer an explanation of the disposition of the Findings and Conclusions of Law submitted by both sides.

The following events stand out: (1) The State filed its Appropriation and Temporary Easement Maps on October 30, 1959; (2) the State filed its certificate terminating the temporary easement on August 13, 1963, although it presented proof that the demolition contract was completed April 24, 1961; (3) the A & P, on June 30, 1960, without compulsion from the State or prior notice to the State or Garfield, abruptly moved out and removed with its own work force all the alleged fixtures within the store, saving what it chose to save and dumping the remainder; (4) the taking was only of a portion of the premises; and (5) each defendant has a claim to a portion of the damages.

Additionally, A & P contends that the lease was terminated by the appropriation, while Garfield asserts A & P owes rent pursuant to the lease in spite of the appropriation, for which it has instituted an action in the appropriate court, even while it claims for loss of rent against the State.

The Court, upon settled law, rejects the contention of A & P that the appropriation terminated the lease. The law, as restated in numerous cases, seems to be that where only a portion of a leased property is taken by eminent domain, there is no eviction, and thus there...