In re City of New York

In a condemnation proceeding, the parties cross-appeal from a final decree and judgment (one paper) of the Supreme Court, Kings County, dated July 10, 1975, which, inter alia, (1) made an award to respondent-appellant and (2) disallowed the special benefit assessments resulting from the opening and extension of Strickland Avenue. Final decree and judgment affirmed, without costs or disbursements. We agree with the result reached by the Special Term as to all issues herein presented. We would note, however, that Matter of Acca v Bureau of Assessors of N. Y. City Fin. Admin. (45 AD2d 1005), upon which the Special Term primarily relied to support its invalidation of the special benefit assessments, has been reversed by the Court of Appeals (36 NY2d 1015). Nevertheless, we sustain the Special Term’s determination in this respect upon our finding that, as a matter of law, there has been no assessable benefit flowing to the assessees from the condemnation of claimant’s property or from the opening of Strickland Avenue. It appears that Strickland Avenue existed, for the most part, in its present form prior to the city’s action taken and that no significant change has occurred in the size or use of the claimant’s property since the condemnation in 1960. It *945does not appear that in this case the city’s mere acquisition of the claimant’s property and the nominal opening of the street gave rise to an improvement, the cost of which may be recouped from local property owners by the city by way of a special benefit assessment (see Matter of City of New York [Juniper Ave.], 233 NY 387, 392; cf. Matter of City of New York [Fifty-fifth St.], 181 App Div 941). Gulotta, P. J., Latham, Damiani and O’Connor, JJ., concur.