Matter of City of Ny (Civitano) , 39 N.Y.2d 453 ( 1976 )

39 N.Y.2d 453 (1976)

In the Matter of the City of New York, Appellant-Respondent, Relative to Acquiring Title to Real Property Required for the Widening of Bruckner Expressway from Bronx River to Havenmeyer Avenue in the Borough of The Bronx. Onofrio R. Civitano et al., Respondents; Humble Oil and Refining Company, Appellant.

Court of Appeals of the State of New York.

Argued March 25, 1976. Decided April 29, 1976.

W. Bernard Richland, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for appellant-respondent.

George A. Burrell, P. C., for Humble Oil and Refining Company, appellant.

Robert S. Gottlieb and Michael J. Greco for respondents.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

MEMORANDUM.

On the appeal by the city it is urged that the owners of the property were awarded excessive compensation. It is settled that the measure of damages to which an owner is entitled for a partial taking is the difference between the value of the whole parcel before the taking and the value of the remainder after the taking where no consequential damages were sought or awarded (Diocese of Buffalo v State of New York, 24 N.Y.2d 320, 323). And in the case of income producing property, capitalization of income is generally a valid method of determining valuation (Ettlinger v Weil, 184 N.Y. 179, 183; Humble Oil & Refining Co. v State of New York, 12 N.Y.2d 861). Here there was adequate proof that the annual income produced by the property prior to the taking was $18,000, reduced to $10,800 after the taking. Capitalizing on these figures the court determined that the difference between the market value of the whole before the taking and the remainder after the taking was $90,000.

The city's first argument is that the court should have adopted a different method of valuation based on evidence of comparable sales. It is sufficient to note that, on this record, the court could properly conclude, as it did, that the comparable sales offered by the city were not in fact comparable to the condemned parcel.

The city's second point is that the court erred in granting additional amounts for the value of the land and improvements actually taken and the costs of restoring the remaining parcel. It urges that the owners have already been fully compensated for the decrease in value of the property occasioned by the partial taking, i.e., $90,000, and this represents their entire loss.

Following the taking the rent was adjusted, at the behest of the tenant, to reflect the fact that both the size of the plot and the service station building had been substantially reduced. Thus the loss of the condemned portion of the lot and the improvements located on it were reflected in the reduced rental figure which as indicated, formed the basis for the $90,000 award. Under these circumstances additional payments for these items would constitute double compensation and the court should not have made the awards.

This is not true however of the $12,000 awarded for restoration of the remaining parcel. There was an affirmed finding of fact that it was necessary for the owners to make the expenditures to restore the station to working condition and that this was not reflected in the reduced rental. This then constituted an additional loss to the owners and thus the additional award for $12,000 was proper (cf. Diocese of Buffalo v State of New York, supra, at pp 329, 330).

In sum, on this branch of the appeal, we find that the owners are entitled to a total of $102,000, and the order of the Appellate Division should be modified accordingly.

On the appeal by Humble it is urged that no portion of the $10,700 awarded for relocating the fixtures was attributed to the purchase of new equipment. The record supports this contention. Thus on this part of the appeal the order of the Appellate Division should be modified by increasing Humble's award to $10,700, the amount fixed by the Supreme Court.

Order modified, with costs to prevailing parties, in accordance with the memorandum herein and, as so modified, affirmed.