Section 708 of the Eminent Domain Procedure Law (“EDPL”) provides that the acquisition of other than real property, the acquisition shall be in the manner and procedure prescribed for the acquisition of real property by the EDPL.
The provision is hardly noticed. There are no cases annotated in McKinney’s Volume 16A. But there are cases out there for review if you know about them.
Matter of Port Auth. Trans-Hudson Corp. (Hudson Rapid Tubes Corp.), 20 NY2d 457 (1967). In this case, the Port Authority of New York and New Jersey condemned the electric subway line between New Jersey and Manhattan. The Court of Appeals held that when condemning a going concern, value must be based upon the cost of organizing and systemizing the enterprise and that depreciated original cost, rather than present market or scrap value, is proper for tunnels of the railroad.
Later, the City of New York condemned the Fifth Avenue Coach Lines after it was stymied by labor strikes.
The City condemned everything, the buses, franchises, service buildings, the law library and the employees. I know a lot about this case because when I started as Assistant Corporation Counsel in the Condemnation Division, many of the people in the office were former Fifth Avenue Coach employees. Our law library books were stamped, “Fifth Avenue Coach.”
In Matter of City of New York (Fifth Avenue Coach), 22 NY2d 613 (1968), the Court of Appeals held that a franchise is protected by both the State and Federal Constitutions against substantial curtailment or destruction by the government without the payment of fair compensation. The tangible assets are to be valued on a sound value basis. The intangible going concern assets should be compensated including operating schedules; trained personnel; garage and shop layouts; coach routes; operating systems; procedures and records; franchises; operating rights and permits; and certain classes of trained personnel.
Another case is Nunley’s Amusement Corp v County of Nassau, 266 AD2d 292 (2d Dept 1999). I tried and argued the appeal in Nunley’s carousel. It was a fun case. Nunley’s was originally located in Brooklyn. The owners moved it to Sunrise Highway in Nassau County. The owners wanted to retire and received a very good long term lease offer. They retained an auction house to auction the horses and other items. The carousel was the last privately owned carousel with “Stein and Goldstein” hand carved wooden horses. The planned auction had incredible interest for the very collectable horses. After the auction went public, the community went crazy. It appears that everyone in Nassau County apparently visited the carousel. After public outage, the County condemned the carousel, the land and all other items.
We retained the leading expert on carousel horses in America, William Manns. I found him in the library when I read his book, “Painted Ponies.” Zon International Publishing Company (1986). Photos of Nunley’s appears at pp 154-163. The land value was settled. Acting Justice (Court of Claims Judge) Frank Rossetti awarded $854,450 and the Appellate Division affirmed. 266 AD2d 292 (2d Dept 1999).
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