Kirsch v. State

41 A.D.2d 595, 340 N.Y.S.2d 315, 1973 N.Y. App. Div. LEXIS 5309

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1973
• Docket: Claim No. 50184
• Status: Published

Opinion

Judgment unanimously reversed upon the law and facts, without costs and judgment in the sum of $9,200 awarded to claimant in accordance with the following memorandum: Claimant leased the first floor of 313 Main Street, Buffalo, which it used as a restaurant with a liquor license, for $5,400 per year. The proof varied on the physical dimensions of the leasehold but the court found them to be 18 feet by 56% feet, which was 1,017 square feet of floor space. Kirsch also used the basement but the lease did not cover it, and he occupied it only as licensee (cf. Reynolds v. Van Beuren, 155 N. Y. 120, 123). The term of the lease was for a five-year period from October 1, 1963 with a five-year option to renew. The State appropriated the building in which the leasehold was located, whereupon claimant retired from business. We accept the comparable of 11 Court Street used in the companion case of Mathias v. State of New York. Claimant’s appraisal 'and appraiser’s testimony were incorporated into the record here and we make the same adjustments made in Mathias. This results in a net comparable figure of $7 per square foot for the new lease after adjustments. Deducting Kirsch’s actual rental of $5.31 per square foot leaves a difference of $1.69 per square foot per year with monthly damages of $143.22. Multiplication by the Inwood coefficient of 64.159261 to discount the 84-month lease period at 8% results in damages to Kirsch of $9,188.89, which we round off at $9,200. (Appeal from judgment of Court of Claims dismissing claim for damages for permanent appropriation of leasehold interest.) Present — Goldman, P. J., Witmer, Moule, Cardamone and Henry, JJ.