In re the City of New York

73 A.D.2d 964, 424 N.Y.S.2d 257, 1980 N.Y. App. Div. LEXIS 9901

Opinion

In a condemnation proceeding, claimants appeal from an order of the Supreme Court, dated July 25, 1978 and entered in Richmond County, which denied their motion to restrain the City of New York from proceeding with the widening of the street in front of said claimants’ property in such manner as to condemn 10 feet on the easterly side of said street and no feet on the westerly side. Order affirmed, without costs or disbursements. We do not reach the threshold constitutional issue of the adequacy of the notice of condemnation. The claimants, by appearing in the proceeding and participating in the hearing to establish value, waived such claim. Further, if the ultimate issue raised by the claimants (i.e., the alleged arbitrariness of the entire allocation of the street widening to the easterly side), were properly before this court, we would hold that such allocation was legislative in character and not subject to attack in this proceeding (see Kaskel v Impellitteri, 306 NY 73, 80; Matter of Asness v City of New York, 5 Mise 2d 779, affd 4 AD2d 677). Hopkins, J. P., Titone, Gulotta and Cohalan, JJ., concur.