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In re West Bushwick Urban Renewal Area

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 2, 2010

IN THE MATTER OF WEST BUSHWICK URBAN RENEWAL AREA, PHASE 2. AND 534 BUSHWICK AVENUE CORPORATION, ET AL., APPELLANTS;
v.
CITY OF NEW YORK, RESPONDENT.

In a condemnation proceeding, the claimants 534 Bushwick Avenue Corp., and Sound and Security Solutions, Inc., appeal from an order of the Supreme Court, Kings County (Gerges, J.), dated August 1, 2008, which granted the motion of the condemnor, the City of New York, to dismiss their claim for compensation for trade fixtures.

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., RUTH C. BALKIN, ARIEL E. BELEN and CHERYL E. CHAMBERS, JJ.

(Index No. 35057/04)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Where an "improvement is inconsistent with the highest and best use of the property, the claimant is not entitled to compensation for that improvement" (Matter of West Bushwick Urban Renewal Area, Phase 2,AD3d, 2009 NY Slip Op 07649 [2d Dept 2009]; see Acme Theatres v State of New York, 26 NY2d 385, 388-389; Van Kleeck v State of New York, 18 NY2d 897, 899; Irv-Ceil Realty Corp. v State of New York, 43 AD2d 775, 776; Matter of County of Nassau, 43 AD2d 45, 51, affd 39 NY2d 958). The claimants, who are the owners of both the subject property and the trade fixtures located thereon, acknowledge that the trade fixtures are inconsistent with the highest and best use of the subject property as mixed commercial and residential and, thus, would have to be destroyed. Consequently, the Supreme Court correctly granted the condemnor's motion to dismiss the claimants' trade fixtures claim (see Matter of West Bushwick Urban Renewal Area Phase 2,AD3d, 2009 NY Slip Op 07649 [2d Dept 2009]).

The claimants' remaining contentions are either not properly before this Court or without merit.

MASTRO, J.P., BALKIN, BELEN and CHAMBERS, JJ., concur.

20100202

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