In re Edgemere Houses, Borough of Queens, City of New York, 13 A.D.2d 780, 214 N.Y.S.2d 907 (N.Y.A.D. 2 Dept., May 01, 1961)

Supreme Court, Appellate Division, Second Department, New York.
In the Matter of the Application of The City of New York, etc., relative toacquiring title, where not heretofore acquired, to certain real property withinthe area bounded generally by Almeda Avenue, Conch Place, Beach 51st Street,Beach Channel Drive, Beach 58th Street and Elizabeth Avenue, duly selected as asite for a public housing project to be known as EDGEMERE HOUSES, in theBOROUGH OF QUEENS, CITY OF NEW YORK.The City of New York, Appellant-Respondent; Jacob Schneider, Samuel S.Schneider, Abraham Fox, Milton Fox, Lester Fox and Selma Pollack, d/b/a AjayRealty Company (D.P. 21); Jacob Schneider, Abraham Fox, Milton Fox and SamuelSchneider (D.P. 36); Edgemere Aviation Corporation (D.P. 70), Claimants-Respondents; Vernam Estates, Inc. (D.P. 70), Claimant-Respondent-Appellant.

May 1, 1961.

  Condemnation proceeding.  From a decree of the Supreme Court, Kings County, J. Vincent Keogh, J., the condemnor and the property owners appealed.  The Supreme Court, Appellate Division, held that conjunctive use value was not a proper element of damage in fixing land award for condemned property.
  Decree affirmed, as modified, in part and remitted in part and motion to dismiss condemnor's appeal denied.

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Conjunctive use value was not a proper element of damage in fixing land award for condemned property.  *908 Charles H. Tenney, Corp. Counsel, New York City, for appellant- respondent City of New York; Robert D. Joyce, New York City, of counsel.
  Karelsen & Karelsen, New York City, respondent-appellant Vernam Estates; Frank E. Karelsen, III, New York City, of counsel.
  Ira I. Gluckstein, New York City, claimant-respondent Edgemere Aviation Corp.; Joshua S. Sparrow, Brooklyn, of counsel.
  Dreyer & Traub, Brooklyn, for remaining claimants-respondents; Samuel Kirschenbaum, Brooklyn, of counsel.

  Before NOLAN, P. J., and UGHETTA, KLEINFELD, CHRIST and BRENNAN, JJ.

  MEMORANDUM BY THE COURT.
  In this condemnation proceeding the parties cross-appeal as follows from the final decree of the Supreme Court, Kings County, made November 16, 1959, after a nonjury trial:
  (1)  The condemnor, City of New York, appeals from so much of the decree as makes fee or land awards for Damage Parcels Nos. 21, 36 and 70, and a fixture or improvement award for Damage Parcel No. 70.
  (2)  Claimant, Vernam Estates, Inc., appeals from so much of the decree as makes a fee or land award for Damage Parcel No. 70.
  On the City's appeal:  Decree modified on the law and the facts by striking out the fee or land award of $68,000 for Damage Parcel No. 36; and proceeding remitted to Special Term for a re-evaluation as to such parcel, the re- evaluation to be made without regard to the so-called 'conjunctive use factor.'  As so modified, decree insofar as appealed from affirmed, without costs.
  Appeal by claimant as to Damage Parcel No. 70, dismissed, such appeal having been withdrawn by it upon the oral argument in this court.
  Motion by claimant, Edgemere Aviation Corporation (renewed by permission of this court granted by order dated March 28, 1960) to dismiss the City's appeal from the portion of the final decree which makes a fixture or improvement award of $6,750 for Damage Parcel No. 70, denied.
  With respect to the land award for Damage Parcel No. 36, we cannot tell on this record what allowance was made therein based upon the factor of conjunctive use value.  In our view, that factor was not a proper element of damage here, and should not have been considered.  Accordingly, the proceeding is remitted to Special Term for the purpose of making a proper re-evaluation as to Damage Parcel No. 36.
214 N.Y.S.2d 907, 13 A.D.2d 780
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