In re City of New York ( 1974 )

McGivern, P. J.

The fixture award of $10,707.50 to the tenant of the automotive service station, Humble Oil and Refining Company, must be reduced. The award clearly embraces an award or subsidy for new equipment, including new pumps and mercury vapor flood lights, installed in place of incandescent lighting, approximating some $5,000, which was improperly allowed.

Businesses affected by condemnation are- not entitled to subsidies “ to finance a new facility ”, in replacement of worn out equipment. (Rose v. State of New York, 24 N Y 2d 80, 88.) A condemnor, here the City of New York, “ is not required to place a claimant in a better position thari he was before the taking”; and the proper rule of damages “limits compensation to either in-place value or removal costs, whichever is less. ” (City of Buffalo v. Clement Co., 28 N Y 2d 241, 259, 261.) Limiting the fixture award herein to a figure permissible on this record, within the guidelines forged by the Court of Appeals, requires that the fourth separate and partial decree appealed from be modified by reducing the award to claimant Humble Oil and Refining Company to $5,557; The latter sum represents the valuation by the city’s expert of one waste tank in the sum of $400, and the cost of relocating the vent lines to permit the operation of the remaining premises in a lawful manner, which was established as being $5,157. Since the city concedes that the award to Humble Oil and Refining Company should be at least in the sum of $5,498, an allowance of the aggregate of the items indicated, to wit: $5,557, which excludes compensation for new equipment, may be justified on this record. (City of Buffalo v. Clement Co., supra; see Strong v. State of New York, 38 A D 2d 241.)

The fourth separate and partial final decree should be modified, on the law and on the facts, by reducing the award to Humble Oil and Refining Company to $5,557, without costs or disbursements.

The awards made to the owners of Damage Parcels 69, 70, P69 and P70, should be affirmed, without costs or disbursements.

Settle order on notice.