In re Baxavanis

Appellate Division of the Supreme Court of New York

In re Baxavanis

94 A.D.2d 741, 462 N.Y.S.2d 495, 1983 N.Y. App. Div. LEXIS 18193

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 16, 1983

StatusPublished

This text of 94 A.D.2d 741 (In re Baxavanis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Baxavanis, 94 A.D.2d 741, 462 N.Y.S.2d 495, 1983 N.Y. App. Div. LEXIS 18193 (N.Y. Ct. App. 1983).

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Opinion

— In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Board of Revision of Awards, dated April 24, 1981, awarding the petitioner $3,000 in damages for the “change in grade” of an abutting street, the board appeals from a judgment of the Supreme Court, Richmond County (Rubin, J.), dated January 20, 1982, which, inter alia, vacated the award and remitted the matter to the board for a new hearing and determination, with a direction that the board award petitioner consequential damages for both the “widening” of the street in question and the “change in grade”. Judgment modified, on the law, by deleting so much of the third decretal paragraph as directed the Board of Revision of Awards to render a decision upon the rehearing awarding the petitioner consequential damages attributable to the “widening” of the street in question. As so modified, judgment affirmed, without costs or disbursements. The Board of Revision of Awards is without statutory authority to award petitioner consequential damages arising out of the “widening” of the adjoining thoroughfare, which was accomplished through the condemnation of a portion of petitioner’s former front yard (see Administrative Code of City of New York, §§ B9-3.0, B9-7.0). That “taking” was the subject of a condemnation proceeding in which a judgment has been entered. However, in view of the fact that the $3,000 awarded as damages by the board is not supported by the record, we agree with Special Term that the matter must be remitted for a new hearing and determination in which the carefiifiy focused issue shall be the extent of damages attributable solely to the change in grade of the abutting roadway (see Administrative Code of City of New York, § B9-3.0; cf. Mobil Oil Corp. v Tax Comm, of City ofN. Y., 60 AD2d 910). We pass upon no further issue. Damiani, J. P., Mangano, Gibbons and Gulotta, JJ., concur.

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— In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Board of Revision of Awards, dated April 24, 1981, awarding the petitioner $3,000 in damages for the “change in grade” of an abutting street, the board appeals from a judgment of the Supreme Court, Richmond County (Rubin, J.), dated January 20, 1982, which, inter alia, vacated the award and remitted the matter to the board for a new hearing and determination, with a direction that the board award petitioner consequential damages for both the “widening” of the street in question and the “change in grade”. Judgment modified, on the law, by deleting so much of the third decretal paragraph as directed the Board of Revision of Awards to render a decision upon the rehearing awarding the petitioner consequential damages attributable to the “widening” of the street in question. As so modified, judgment affirmed, without costs or disbursements. The Board of Revision of Awards is without statutory authority to award petitioner consequential damages arising out of the “widening” of the adjoining thoroughfare, which was accomplished through the condemnation of a portion of petitioner’s former front yard (see Administrative Code of City of New York, §§ B9-3.0, B9-7.0). That “taking” was the subject of a condemnation proceeding in which a judgment has been entered. However, in view of the fact that the $3,000 awarded as damages by the board is not supported by the record, we agree with Special Term that the matter must be remitted for a new hearing and determination in which the carefiifiy focused issue shall be the extent of damages attributable solely to the change in grade of the abutting roadway (see Administrative Code of City of New York, § B9-3.0; cf. Mobil Oil Corp. v Tax Comm, of City ofN. Y., 60 AD2d 910). We pass upon no further issue. Damiani, J. P., Mangano, Gibbons and Gulotta, JJ., concur.

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Bluebook (online)

94 A.D.2d 741, 462 N.Y.S.2d 495, 1983 N.Y. App. Div. LEXIS 18193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-baxavanis-nyappdiv-1983.

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