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In re West Bushwick Urban Renewal Area

October 20, 2009

IN THE MATTER OF WEST BUSHWICK URBAN RENEWAL AREA, PHASE 2.
GEORGE CHO, ETC., ET AL., APPELLANTS;
v.
CITY OF NEW YORK, RESPONDENT.



APPEAL by the claimants, George Cho and Jimmy Yan Yun Chen, doing business as T & J Services, in an eminent domain proceeding, from an order of the Supreme Court (Abraham G. Gerges, J.), dated April 17, 2008, and entered in Kings County, which granted the motions of the condemnor, the City of New York, to dismiss their respective claims for compensation for trade fixtures.

The opinion of the court was delivered by: Dickerson, J.

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.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG and L. PRISCILLA HALL, JJ.

(Index No. 35057/04)

OPINION & ORDER

In this case, we consider whether the claimants, each of whose real property was acquired by the condemnor, City of New York, are entitled to compensation for certain trade fixtures located on their property. We hold that, where, as here, trade fixtures are inconsistent with the highest and best use of the property that is the subject of the taking, claimants are not entitled to compensation for both the property in its highest and best use and the trade fixtures which are inconsistent therewith.

The Taking

The claimant George Cho was the owner of 73 Melrose Street in Brooklyn. The claimant Jimmy Yan Yun Chen, doing business as T & J Services, was the owner of 90 Beaver Street in Brooklyn. On February 28, 2005, the condemnor, City of New York, acquired these two properties as part of its West Bushwick Urban Renewal project. At the time when title to the real property vested in the City, Cho's lot was vacant. Chen's was improved with a one-story industrial building.

The Trade Fixtures

Shortly after title vested in the City, the claimants filed separate notices to recover compensation for the taking of their property. In addition to seeking compensation for the taking of the real property itself, they also sought compensation for the trade fixtures located thereupon. Each claimant provided a schedule of fixtures appropriated, which primarily consisted of fencing, gating, paving, curb cuts, and a sidewalk for a parking lot.*fn1 The City offered the claimants an advance payment on their trade fixture claims. The City offered Cho the sum of $8,560, and offered Chen the sum of $13,424.

Highest And Best Use

The parties exchanged fee appraisals. The appraisers for each of the three parties agreed that the highest and best use of the properties was mixed commercial and residential use. Cho's appraiser, Daniel P. Lane & Associates, Inc., stated that "[t]he property is situated in a low and mid-rise residential area along a commercial thoroughfare; therefore, the highest and best use would be for mixed residential/commercial use." Chen's appraiser, Albert Valuation Group New York, Inc., stated that: "Owing to the increased demand for quality residential and retail space in the area, the lawful development of a mixed-use residential/commercial building is justifiable. It is concluded that, as of the appraisal date, the highest and best use of the subject property, as though vacant, is for the development of the vacant site for a lawful mixed residential /commercial use." The City's appraiser, Michael Haberman Associates, Inc., stated that "[i]n this case, we believe residential/commercial development would provide the highest return to the land. As a result of this analysis, we have ...


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