In re City of New York

Appellate Division of the Supreme Court of New York

In re City of New York

53 A.D.2d 861, 385 N.Y.S.2d 358, 1976 N.Y. App. Div. LEXIS 13692

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

DecidedJuly 6, 1976

StatusPublished

This text of 53 A.D.2d 861 (In re City of New York) 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 City of New York, 53 A.D.2d 861, 385 N.Y.S.2d 358, 1976 N.Y. App. Div. LEXIS 13692 (N.Y. Ct. App. 1976).

Pincite

Opinion

In a condemnation proceeding, the City of New York appeals from so much of a seventh separate and partial final decree of the Supreme Court, Kings County, entered May 7, 1975, as made an award for certain fixtures on Damage Parcels Nos. 410 and 411. Seventh separate and partial final decree affirmed insofar as appealed from, without costs or disbursements. The record supports the Special Term’s finding that the fixtures in question could not be removed without substantial damage to themselves or to the freehold. The award was therefore properly made on the basis of sound value (reproduction cost less depreciation). The city’s strongest argument is that the actual removal of the 25-ton press and the eight presses weighing a total of 92 tons, negated a finding that the 18 less bulky items in question, the heaviest of which weighed 6.2 tons, could not be moved without substantial damage to themselves or the freehold. If the heavier machinery could be moved without damage to itself or the freehold, why not also the lighter machinery? That question hag a certain surface cogency, but the short answer is that Special Term factually found that the 18 items in question could not be moved without substantial damage to themselves or to the freehold, and the record on this appeal supports that finding. Moreover, the city does not attempt to show that the items moved were in the same situation as to movability as those not moved, but merely relies upon a presumption that, if heavier fixtures are movable, so also are lighter fixtures. This is not necessarily so, since the circumstances of each may be different. Martuscello, Acting P. J., Cohalan, Damiani, Shapiro and Titone, JJ., concur.

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In a condemnation proceeding, the City of New York appeals from so much of a seventh separate and partial final decree of the Supreme Court, Kings County, entered May 7, 1975, as made an award for certain fixtures on Damage Parcels Nos. 410 and 411. Seventh separate and partial final decree affirmed insofar as appealed from, without costs or disbursements. The record supports the Special Term’s finding that the fixtures in question could not be removed without substantial damage to themselves or to the freehold. The award was therefore properly made on the basis of sound value (reproduction cost less depreciation). The city’s strongest argument is that the actual removal of the 25-ton press and the eight presses weighing a total of 92 tons, negated a finding that the 18 less bulky items in question, the heaviest of which weighed 6.2 tons, could not be moved without substantial damage to themselves or the freehold. If the heavier machinery could be moved without damage to itself or the freehold, why not also the lighter machinery? That question hag a certain surface cogency, but the short answer is that Special Term factually found that the 18 items in question could not be moved without substantial damage to themselves or to the freehold, and the record on this appeal supports that finding. Moreover, the city does not attempt to show that the items moved were in the same situation as to movability as those not moved, but merely relies upon a presumption that, if heavier fixtures are movable, so also are lighter fixtures. This is not necessarily so, since the circumstances of each may be different. Martuscello, Acting P. J., Cohalan, Damiani, Shapiro and Titone, JJ., concur.

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Bluebook (online)

53 A.D.2d 861, 385 N.Y.S.2d 358, 1976 N.Y. App. Div. LEXIS 13692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-city-of-new-york-nyappdiv-1976.