In re the City of New York , 278 N.Y.S.2d 33 ( 1967 )

Appeal from second separate and partial final decree of the Supreme Court at Special Term entered on March 2, 1966 in New York County, insofar as it fixed awards on various damage parcels in a condemnation proceeding. Memorandum by the Court. The second separate and partial final decree, insofar as it is appealed from, affirmed, with $50 costs and disbursements to each of the elaimants-respondents. The record amply supports the findings and conclusions of, and the several awards as fixed by the trial court. Damage Parcel 29 was a gasoline service station, and, by virtue of zoning restrictions which had the effect of prohibiting additional stations in the area, it was well adapted for its particular use. The annual gallonage of gasoline sold at the station was 344,000 in 1959, 337,000 in 1960, 309,000 in 1961, 289,000 in 1962, 305,000 in 1963 and 315,000 in 1964. Thus, although there was some decline, starting in 1960, in the gallonage put out at the station, it is noted that, beginning with 1963, sales were on the upturn. We know from the trial court’s findings that he utilized the capitalization method in reaching a fair and reasonable value for Damage Parcel 29. We know too, from the record as a whole, that he gave due consideration to all relevant factors, including (1) the location of the property including adaptability for its particular use in view of zoning restrictions aforesaid; (2) the rental of $13,500 paid to the owner by Soeony Mobil Oil Co. under a lease expiring November 20, 1971, with two renewal options each for a period of five years with a renewal rental of $15,000 for the first option period and $15,500 for the second option period; (3) the rental of $10,800 paid by the subtenant operator to Soeony Mobil Oil Co.; and (4) the gallonage sales at the station on the basis of which an operator, in addition to the rental of $10,800, would customarily pay at least one cent a gallon. We know that Special Term arrived at a reasonable net rental income of $10,800 which was capitalized at 8% to reach a fair and reasonable value for the property. The dissent states that the court arrived at a gross reasonable rental value of $13,500. This does not appear. It is true, however, that the record supports a finding that the reasonable gross rental value of the property would be in said amount or slightly in excess thereof. $13,500 was the rent Soeony Mobil Oil Co. was to pay until November, 1971 and thereafter, if it exercised its options for renewal, Soeony would pay increased rent. It is to be particularly noted that out of this rental, the owner paid the taxes of about $2,700; the taxes were not paid out of the rental paid by the subtenant operator. Yet the dissent would charge this tax expense to the sublease rental of $10,800. In any event, if we add to the sublease rental a reasonable gallonage rental based on the average output at the station, namely, $3,160, we have a gross rental of about $14,000 from which one would properly deduct the taxes and other miscellaneous small expense in arriving at a net rental income. This justifies the finding of a reasonable net rental income in an amount which, when capitalized, would fully support the awards at Special Term. With respect to Damage Parcels 20, 22, 24, 25 and 26, the record also fully supports the findings and conclusions of the trial court. The appellant city challenges a certain portion of the award to claimant, Fassler Iron Works, Inc., for fixtures on the ground that certain of the fixture items were removable and that others were already compensated for in the fee award. The building condemned was used for an iron or steel fabrication works. The fixtures for which an award was made consisted principally of heavy and specially adapted machinery. The trial court found, and we affirm his findings, that “ These items are complete operating units made up of several component parts and the elimination of even one component part would destroy the usefulness of the machine. The value of the hoists on severance would be negligible and the cost of dismantling and reassembling the unit is a factor to be considered in the decreased sound value. All these items were affixed to the realty with varying degrees of physical force, with the intention of permanent affixation and were adaptable to the realty involved and were therefore compensable. * * * the claimant has satisfactorily established that it was intended at all times by the owner that the items at issue were to be part of the realty and the property of this claimant, independent of any basic realty value. The record shows that these items were permanently and firmly attached to the realty and were not personalty to be excluded from the taking It was stipulated that the value of the contested items was $47,722; further that, after severance of the same, their value would only be $9,466; and it was conceded by the city that the cost of removal of these items would exceed even the severance value of $9,466. Thus, the trial court stated, that “ The city thus does not challenge the claimant’s contention that the sound value of the items, if severed, would be nominal or nil and even further lessened by the necessary cost of labor involved in dismantling, removing and reassembling the items.” The dissent would allow the award to stand as to certain of the contested items but would set it aside as to others. Apparently, the dissent would consider each item separately and, drawing upon the Justice’s own experience in these matters, independent of the record, accept the testimony and evidence presented by the claimant as to some of the items and reject it as to the others. The appeal, however, is to be determined on the record, and we conclude that the findings of the trial court are properly supported. The appellant city also contests that portion of the fixtures award which includes an allowance for wood paneling installed to modernize the offices of the iron works company; also challenged is a small portion of the fixture award for storage decks (so designated in appellant’s brief) installed by the company. The evidence was that the claimant iron works company had installed these items, had the right to remove them and expected to get paid for them by anyone taking over the building. The city counsel had contended before the trial court that the paneling should be considered as included with the realty in arriving at a rental value for the realty for the purpose of an appraisal on the capitalization method. On the other hand, claimant’s counsel pointed out that the estimates before the court with respect to the reasonable rental value of the property were presented on the basis of comparable floor space only; that they did not take into consideration the rental of offices with comparable paneling. With these contentions before it, the trial court eventually made a separate award for the paneling and also a separate award for the storage decks. Under the circumstances, these were intended to be separate awards and they were not a duplication of the compensation made to the owners in the fee awards. We conclude that the total of the awards with respect to all of the parcels involved on the appeal, including the fixture awards, represents the fair and reasonable value of the realty involved including fixtures.