IN RE: West Bushwick Urban Renewal Area (2010)

Argued-November 23, 2009

DECISION & ORDER

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.

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 N.Y. Slip Op 07649 [2d Dept 2009];  see Acme Theatres v. State of New York, 26 N.Y.2d 385, 388-389;  Van Kleeck v. State of New York, 18 N.Y.2d 897, 899;  Irv-Ceil Realty Corp. v. State of New York, 43 A.D.2d 775, 776;  Matter of County of Nassau, 43 A.D.2d 45, 51, affd 39 N.Y.2d 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 N.Y. 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.

ENTER:

James Edward Pelzer

Clerk of the Court