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  5. 45 N.Y.2d 863 (1978)
 

300 W. REALTY CO. v. CITY OF NEW YORK

45 N.Y.2d 863 (1978)

300 West Realty Co., Appellant-Respondent, v. City of New York, Respondent-Appellant.

Court of Appeals of the State of New York.

Decided October 19, 1978.

Attorney(s) appearing for the Case

George Sassower and Doris L. Sassower for appellant-respondent.

Allen G. Schwartz, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for respondent-appellant.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE concur in memorandum; Judge FUCHSBERG dissents and votes to reverse and remit for retrial on the issue of damages in a separate opinion.

MEMORANDUM.

The order of the Appellate Division should be affirmed, without costs.

Examination of the sufficiency of the record on this appeal reveals the inadequate nature of the proof offered at trial by plaintiff, who had the burden of proof. Assessing the divergent findings of fact made by the Supreme Court and the Appellate Division, this court adopts the findings made by the latter. (See Matter of Town Bd...

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