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ARLEN OF NANUET v. STATE OF NEW YORK

26 N.Y.2d 346 (1970)

Arlen of Nanuet, Inc., Respondent-Appellant, et al., Claimants, v. State of New York, Appellant-Respondent. (Claim No. 39972.) Bernard S. Siegel et al., Respondents, v. State of New York, Appellant. (Claim No. 40099.)

Court of Appeals of the State of New York.

Decided April 16, 1970.

Attorney(s) appearing for the Case

Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Ruth Kessler Toch of counsel), for appellant-respondent.

Bernard L. Bermant and Carl J. Moskowitz for respondent-appellant.

David Marcus, Graham Barkham and William S. Gray for respondents.

Judges BURKE, SCILEPPI and BERGAN concur with Chief Judge FULD; Judge BREITEL dissents in part and votes to affirm as to the fee owners and to reverse as to the tenant in a separate opinion in which Judge JASEN concurs; Judge GIBSON taking no part.

Chief Judge FULD.

The principal question posed — an important one in the field of condemnation — is whether it is permissible to fix the market value of land, completely bare when condemned, solely on the basis of capitalization of income expected to be realized from buildings and other extensive improvements not yet financed, on which no work had even been begun on the day of taking.

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