In re the City of New York
In a condemnation proceeding, the claimant appeals from so much of a fourth separate and partial final decree of the Supreme Court, Queens County, entered May 1, 1978, as, after a nonjury trial, awarded it nominal damages of $1 each for Damage Parcels Nos. 236B, 240C and 242B. Decree affirmed insofar as appealed from, with costs. The issue raised in this condemnation proceeding is whether the trial court erred in granting only nominal damages of $1 for each of the three damage parcels in question. These three parcels of vacant land are contiguous and form a 20-foot-wide strip abutting the service road of the Whitestone Expressway, between Ulmer and Downing Streets. While the claimant received substantial awards for other damage parcels in this proceeding, the propriety of those awards are not before this court at this time. The City of New York, in the process of building a large industrial park in the College Point section of Queens, acquired title in fee on December 1, 1972 to a large tract of the claimant’s land, including these three damage parcels. It is undisputed that in 1962, while the City of New York was building the service road of the Whitestone Expressway, it obtained a "permanent and perpetual” slope easement over another tract of the claimant’s land, also encompassing the identical damage parcels presently at issue. A slope easement, according to expert testimony, is an easement used to "laterally support” a highway grade and here it was designed to insure stability of the service road of the expressway. While the 1962 easement prevented the claimant from building or excavating on the land, the claimant nevertheless had the undisturbed use of the land for the storage of trucks from 1962 to the present. In the subsequent proceeding in the Supreme Court, Queens County (Index No. 36-1962) to compensate the claimant for the damages of the partial taking, the trial court, by decision dated June 25, 1968, granted damages representing the full fee taking, and not merely a partial taking for a slope easement. Mr. Justice Conroy, presiding at the trial, noted at that time that "In the computation of compensable damages herein, the Court was actuated by the concept that a permanent and perpetual easement is equivalent to a full fee taking” (emphasis supplied). No appeal by the city was taken from the resulting order. In view of the fact that the claimant had been fully compensated during the 1962 partial taking proceedings, the city urged that only nominal damages were recoverable in the present proceeding, i.e., that the claimant is entitled to be compensated only once for the identical parcels of land. The trial court essentially agreed with the city’s position, stating that notwithstanding the fact that the 1962 proceeding was for a slope easement, it was "akin” to that of a street easement which had left the claimant with "but a naked fee title” and for which it had been fully indemnified (citing Matter of City of New York [Braddock Ave.],