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873 THIRD AVE. v. KENVIC ASSOC.

109 A.D.2d 489 (1985)

873 Third Avenue Corp., Appellant-Respondent, v. Kenvic Associates et al., Respondents, and City of New York, Appellant, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, First Department.

August 8, 1985

Attorney(s) appearing for the Case

Philip H. Schaeffer of counsel (Lenard H. Mandel and David S. Klafter with him on the brief; Paskus, Gordon & Mandel, attorneys), for Kenvic Associates and another, respondents.

Jeffrey A. Jannuzzo of counsel (Richard S. Fries with him on the brief; Debevoise & Plimpton and Demov, Morris & Hammerling, attorneys), for John Hancock Mutual Life Insurance Company and another, respondents.

Irving Genn of counsel (Leonard Koerner with him on the brief; Frederick A. O. Schwarz, Jr., Corporation Counsel, attorney), for City of New York, appellant.

William R. Glendon of counsel (Frederick P. Glick, Guy C. Quinlan and Margaret Blair Soyster with him on the brief; Rogers & Wells, attorneys), for appellant-respondent.

KUPFERMAN, J. P., and ELLERIN, J., concur with BLOOM, J.; SULLIVAN and ASCH, JJ., dissent in part in an opinion by ASCH, J.

BLOOM, J.

The controversy before us involves a claim, by Kenvic and 875 Third Associates (collectively Kenvic), on the one hand, and plaintiff on the other, to the same air rights. We are, in the main, in accord with the conclusions reached by Special Term. In one respect only do we differ. We are of the opinion that the motion of the city to dismiss should have been granted.

Kenvic is the fee owner...

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