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In re New York State Urban Development Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 2, 2009

IN RE THE NEW YORK STATE URBAN DEVELOPMENT CORPORATION, ETC.,
MOVIEPLEX 42, INC., CLAIMANT-APPELLANT,
v.
NEW YORK STATE URBAN DEVELOPMENT CORPORATION, DOING BUSINESS AS EMPIRE STATE DEVELOPMENT CORPORATION, RESPONDENT-RESPONDENT.

Order, Supreme Court, New York County (Leland G. DeGrasse, J.), entered August 13, 2007, which granted respondent's motion to strike the claim for fixture compensation, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Moskowitz, Acosta, JJ.

403585/95 403587/95

The court properly determined that the claim for the value of the fixtures was encompassed in the award for the value of the theater building (see Matter of City of New York (Lincoln Sq. Slum Clearance Project), 24 Misc 2d 206, 208 [1960] ["to give owner an additional award for fixtures would be to duplicate the award which was heretofore made for the theatre building based on a rental which included the use of these same fixtures and equipment"], mod on other grounds 15 AD2d 153 [1961], affd 16 NY2d 497 [1965]). Contrary to claimant's contention, it was in privity with the building owner and had a full and fair opportunity to participate in the prior valuation proceeding (see generally Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090402

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