In re the City of New York

35 A.D.2d 808, 316 N.Y.S.2d 955, 1970 N.Y. App. Div. LEXIS 3414

Opinion

Concur — Eager, J. P., McGivern and Macken, JJ. Tilzer, J., concurs in the following memorandum: I concur and agree that the matter should be remanded for further consideration of whether an additional award should be made as to the removed and relocated items. I note however, that the court below did allow compensation for certain items which were not removed while denying compensation as to items which were removed although the items were of similar nature. Although the city has not taken any appeal, the court on remand should be free to consider all items whether or not removed and in determining any award as to removed items should be guided by the principle stated in Rose v. State of New York (24 N Y 2d 80, 86) that an award for fixtures may be given if the items were used “ for business purposes and * * would lose substantial value if removed”. I also note that the appellant has received $25,000 from the city to defray moving expenses and any award made should take into consideration such amount.