York College Urban Renewal, Stage I, New York City, In re

Decision Date13 December 1976
Citation55 A.D.2d 615,389 N.Y.S.2d 404
PartiesIn re YORK COLLEGE URBAN RENEWAL, STAGE I, NEW YORK CITY. In re YORK COLLEGE URBAN RENEWAL, STAGE II, NEW YORK CITY. In the Matter of the City of New York (York College Urban Renewal, Stage I). ALLIED STORES OF NEW YORK, INC., Appellant, v. The CITY OF NEW YORK, Respondent. In the Matter of the City of New York (York College Urban Renewal, Stage II). ALLIED STORES OF NEW YORK, INC., et al., Appellants, v. The CITY OF NEW YORK, Respondent.
CourtNew York Supreme Court — Appellate Division

Hess, Segall, Popkin, Guterman, Pelz & Steiner, New York City (Alan Ditchik, Arthur A. Segall and Lowell A. Margolin, New York City, of counsel), for appellants.

W. Bernard Richland, Corp. Counsel, New York City (Leonard Olarsch and L. Kevin Sheridan, New York City, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, LATHAM, COHALAN and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

In condemnation proceedings, (1) the claimant in the first above-captioned proceeding appeals from so much of a fourth separate and partial final decree of the Supreme Court, Queens County, dated May 3, 1973, as failed to award it consequential damages for the taking of certain damage parcels known as the Gertz Employees' Parking Lot, and (2) claimants in the second above-captioned proceeding appeal from so much of an eighth separate and partial final decree of the same court, dated April 24, 1973, as failed to award them consequential damages for the taking of certain damage parcels known as the Gertz Customers' Parking Lot.

Fourth and eighth separate and partial final decrees affirmed insofar as appealed from, with one bill of costs.

In these condemnation proceedings, the lessee of a department store, and an affiliate, claim consequential damages to the leasehold arising from the taking of parking lot parcels which they owned and used in connection with the store, but which were not contiguous thereto. No part of the leased premises was taken.

The Special Term properly rejected the claim on the ground that claimants did not establish the requirement of unity of title or ownership (see 4A Nichols on Eminent Domain (3rd ed.), § 14.31(2), p. 14--416) as that requirement has been interpreted (see New York Tel. Co. v. State of New York, 169 App.Div. 310, 322, 154 N.Y.S. 1059, 1068; State ex rel. La Prade v. Carrow, 57 Ariz, 429, 114 P.2d 891).

MARTUSCELLO, LATHAM, COHALAN and HAWKINS, JJ., concur.

HOPKINS, Acting P.J., dissents and votes to reverse the fourth and eighth separate and partial final decrees insofar as they are appealed from and to remand the proceedings to Special Term for the purpose of determining the damages, if any, sustained by the claimants arising from the taking of parking lot parcels used in connection with a certain business, but not contiguous to the premises on which the business was conducted, with the following memorandum:

Claimant Allied Stores of New York (Allied) operates the Gertz Department Store in Queens under a lease which began in 1951 and expires in 1981; an option of renewal until 2006 is contained within the lease. The City of New York took title in these proceedings to the customers' parking lot and to the employees' parking lot used in conjunction with the department store. The lots were located approximately 500 feet from the store. The customers' parking lot was owned by an affiliate of Allied, claimant Alstores Realty Corporation; the employees' parking lot was owned by Allied.

The issue is whether the claimants are entitled to consequential damages arising out of the condemnation of the lots. The Special Term held that such damages were not recoverable because the claimants did not establish unity of ownership of the parcels under consideration. The court found that the principle of unity, though broadened by recent decisions to permit payment of compensation in cases involving equitable ownership or close control, could not be extended to sanction recovery where one claimant is the lessee of one parcel and the owner of another, and an affiliate is the owner of a third. With this view I differ.

In matters of appropriation under eminent domain, the concept of unity has several meanings--unity of ownership, unity of use and unity by contiguity. Each meaning serves a distinct purpose. The idea of unity of use addresses the question of whether the appropriation of one parcel, separated from another not appropriated, requires the payment of compensation because of loss suffered by the second due to the taking of the first. The concept of unity by contiguity is but an aspect of the concept of unity of use. It means, usually, that damages resulting from a severance of one parcel from another through condemnation cannot be recovered unless the parcels are contiguous. However, the modern rule is that if there is an integration in fact of the two parcels arising out of a common enterprise operated on both, damages may be recovered (Strong v. State of New York, 38 A.D.2d 241, 243, 328 N.Y.S.2d 913, 915; Erly Realty...

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