Matter of City of New York

51 N.Y.2d 921 (1980)

In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for Public School No. 223. Myron Nelkin, Respondent. In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for Stage II Urban Renewal Project. Myron Nelkin, Respondent.

Court of Appeals of the State of New York.

Argued October 14, 1980.

Decided November 13, 1980.

Allen G. Schwartz, Corporation Counsel (Gary Schuller and Leonard Olarsch of counsel), for appellant.

M. Robert Goldstein for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*923MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Public School No. 223 parcel: The factual determinations made by Supreme Court with respect to use of this parcel for a governmentally financed apartment house as the highest and best use, with respect to change of zoning and tax abatement, and with respect to governmental financing, together with the agreed land valuation, having been affirmed at the Appellate Division, are now beyond the scope of our review, there being evidentiary support therefor in the record. Based on these factual predicates and in view of the positions taken by the parties on trial, we cannot say that there was error of law in the method of valuation chosen or in the application of that method. While normally the fact that the rezoning had not actually been accomplished would *924 call for at least some discount (see dissenting opn of Mr. Justice LEON D. LAZER at the Appellate Division, 71 AD2d, p 1021), in this instance no proof was offered as to what that discount should be in the relevant market conditions. Accordingly, we see no sufficient reason to disturb the determination made by both courts below as to the value of this parcel.

Urban Renewal parcel: No notice of appeal from the partial final decree of Supreme Court dated June 24, 1976 having been filed, it was not error for the Appellate Division to have dismissed the appeal sought to be taken from that decree.

Order affirmed, with costs, in a memorandum.