Cooney Brothers, Inc. v. State , 276 N.Y.S.2d 337 ( 1966 )

Herlihy, J. (dissenting).

For the reasons hereinafter set forth I would modify the judgment of the Court of Claims to allow only moving expenses of $3,000 pursuant to subdivision 13-b of section 30 of the Highway Law.

To allow compensation in this particular case is to extend the theory of condemnation or “taking” to include payment for items in the nature of personal -property and fixtures when there is no appropriation of such items or of the real property upon which they are situate. My research does not disclose any precedent for such an award.

I agree with the majority conclusion that the lessee has no claim for injury to the leasehold interest and that under the terms of this lease agreement, the rights and obligations of the lessee terminated when the condemnation occurred. (Cf. Matter of City of New York [Allen St.], 256 N. Y. 236, 242.)

The majority herein proceeds upon the theory that the claimant is entitled to recover damages because its fixtures were taken. I would agree with them that where the State appropriates the property upon which a fixture is located, the tenant is entitled to recover the value of the fixture. (Marraro v. State of New York, 12 N Y 2d 285; City of Buffalo v. Michael, 16 N Y 2d 88.) The majority, however, seems to assume that the fixtures involved in this case were located upon the premises appropriated.

The right to remove the installed personal property is not the prime question, as suggested by the majority.

The claimant does not assert in its brief that any fixtures were located upon the premises appropriated and the record is devoid of any proof that anything classified as a fixture owned by the claimant was located on the portion of the premises appropriated with the possible exception of the ends of a conveyor. The claimant was not prevented by the State from' removing its property but in fact did so. Accordingly, this award cannot be affirmed upon the theory that there was a taking of any fixture.

It may be that the majority is asserting that City of Buffalo v. Michael (supra) has established a new rule which in effect is that as long as an appropriation makes it necessary for someone to remove a fixture no matter where located, the owner of such fixture is entitled to the value thereof less salvage. In my opinion, it was not intended by that decision to hold that compensation is allowed where the fixture or leasehold interest was not itself appropriated by the State. In that case the fixture had been attached to the property appropriated and the taking certainly would have included the fixture or leasehold interest were it not for the facts that the tenant removed the fixture and the owner terminated the lease a short time prior to actual condemnation. In the present case the fixtures were not in any way located upon the parcel appropriated and the leasehold agreement terminated by virtue of its own provisions and conditions.

If the fixtures had been owned by the landowner, it would only have been entitled to consequential damages and it is thus apparent that in this case an award of compensation is not for any direct damage to the claimant’s property, hut rather of consequential type since it was unable to continue operations after the appropriation. This type of damage would in a proper case be part of leasehold damages, however, in the present case the claimant is not entitled to any leasehold damages. As it was stated in Rochester Refrigeration Corp. v. State of New York (25 A D 2d 943, 944): “ One cannot be compensated for loss of value caused by the taking of property of another unless a property interest of some type exists in the appropriated parcel.” (Citations omitted.) The decisions on which the majority relies are premised on the awarding of damages, direct or indirect, for the appropriated property and, therefore, are not controlling.

Here the claimant tenant by virtue of the leasehold agreement is in a position of not being entitled to compensation as the result of the appropriation by the State. The predicament, unfortunate as it may be, was not the creation of the State but the result of a voluntary act of the claimant in entering into a lease which provided for the right to remove the personal property, and in so doing to be financially responsible for the cost thereof. The terms of the lease control. (See Matter of City of New York [339 Grand St. Corp.], 10 A D 2d 498, 500.) Regardless of what label is applied, the present award can only be interpreted to be for the cost of moving fixtures from property not appropriated by the State. Albeit, admittedly, not analogous, it is similar to the situation where a user of a public thoroughfare for utilities is unable to recover damages for the moving of such utilities where a later public use of the thoroughfare requires the removal of the utilities. (See New York Tel. Co. v. City of Binghamton, 18 N Y 2d 152.)

Under the law, as presently restricted, there is no basis for an award for fixtures, cost of cure, consequential damages or loss of access, because there was no appropriation of the real property on which the claimant’s personal property was located.

We are not concerned here with a rule of damages. We are concerned with a fundamental principle of condemnation, that the right to recover any damage is premised on the taking of the land for which damage is sought, direct, consequential or both. We should be chary of such drastic departures from existing law but if such is to be the rule, it should be clearly defined for the benefit of the Bench and Bar.

The State concedes and affirmatively argues upon this appeal that the claimant is entitled to moving expenses of $3,000 pursuant to subdivision 13-b of section 30 of the Highway Law and, therefore, such expenses should be awarded to the claimant.

The judgment should be modified by reducing the award to $3,000 and, as so modified, affirmed.

Gibson, P. J., Reynolds, Staley, Jr., and Brink, JJ., concur in Per Curiam opinion; Herlihy, J., dissents and votes to modify and reduce award to $3,000.

Judgment affirmed, with costs.