New Police Station House Precinct No. 68, Borough of Brooklyn, City of New York, In re, 68

• Decision Date: 25 July 1969
• Docket Number: No. 68,68
• Citation: 304 N.Y.S.2d 74,32 A.D.2d 1059
• Parties: In re NEW POLICE STATION HOUSE PCT. NO. 68, BOROUGH OF BROOKLYN, CITY OF NEW YORK. In the Matter of the City of New York (a portion of Block 5817, located at the north side of 65th Street between 3rd Avenue and 4th Avenue as shown on the Tax Maps of the Borough of Brooklyn, duly selected as a site for Police Station House purposes: New Police Station House Pct.in the Borough of Brooklyn, City of New York). Anna M. O'BRIEN et al. (D.P. 1.), Appellants, v. The CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 74

304 N.Y.S.2d 74

32 A.D.2d 1059

In re NEW POLICE STATION HOUSE PCT. NO. 68, BOROUGH OF BROOKLYN, CITY OF NEW YORK. In the Matter of the City of New York (a portion of Block 5817, located at the north side of 65th Street between 3rd Avenue and 4th Avenue as shown on the Tax Maps of the Borough of Brooklyn, duly selected as a site for Police Station House purposes: New Police Station House Pct. No. 68 in the Borough of Brooklyn, City of New York) Anna M. O'BRIEN et al. (D.P. 1.), Appellants, v. The CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division, Second Department.

July 25, 1969.

Corner, Finn, Cuomo & Charles, Brooklyn, John H. Finn, New York City, for claimants-appellants.

J. Lee Rankin, Corp. Counsel, New York City, for respondent; Stanley Buchsbaum, Brooklyn, Milton H. Harris, New York City, of counsel.

Before RABIN, Acting P.J., and HOPKINS, BENJAMIN, MARTUSCELLO and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In a condemnation proceeding, the claimants appeal from a final order of the Supreme Court, Queens County, dated March 17, 1967 and entered in Kings County on March 21, 1967, which fixed their award in the sum of $65,000. The Justice before whom the proceeding was tried died without rendering a decision; and, upon stipulation of the parties, the proceeding was submitted to the Justice who rendered the decision, upon the minutes of the trial.

Final order reversed, on the law, without costs, and new trial granted. The findings of fact below have not been affirmed.

We agree with Special Term's determination that the subject property, fronting on 65th Street, Brooklyn, a one-way side street, had no unity of use with the adjoining corner gasoline service station property, also owned by appellants; that the service station property is under a long-term lease and is fenced off from the part taken; and that appellants, therefore, are not entitled to an award for consequential damages to the service station property (In re Clinton Street Police Station Site in City of New York, Sup., 123 N.Y.S. 198; Ephraim Holding Corp. v. State of New York, 30 A.D.2d 623, 290 N.Y.S.2d 700; cf. Matter of Bd. of Supervisors of Monroe County v. Sherlo Realty, Inc., 32 Misc.2d 579, 224 N.Y.S.2d 244, affd. 19 A.D.2d 590, 240 N.Y.S.2d 950).

However, Special Term erred in not indicating the basis for its award and the highest and best use to which the subject property could have been put (New York State Elec. & Gas Corp. v. Tompkins, 29 A.D.2d...