
    300 West Realty Co., Appellant-Respondent, v City of New York, Respondent-Appellant.
    Argued September 13, 1978;
    decided October 19, 1978
    
      APPEARANCES OF COUNSEL
    
      George Sassower and Doris L. Sassower for appellant-respondent.
    
      Allen G. Schwartz, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

Examination of the sufficiency of the record on this appeal reveals the inadequate nature of the proof offered at trial by plaintiff, who had the burden of proof. Assessing the divergent findings of fact made by the Supreme Court and the Appellate Division, this court adopts the findings made by the latter. (See Matter of Town Bd. of Town of Clarkstown v Sterngass, 40 NY2d 888, 889; Cohen and Karger, Powers of the New York Court of Appeals, § 112.)

Fuchsberg, J.

(dissenting). Trial Term and the Appellate Division agreed that the city is liable to the plaintiff for the damages to the latter’s property resulting from the fire, exposure to the elements, vandalism and deterioration to which it was subjected during the period when the city had divested the plaintiff of ownership and possession. Both courts having done so, my own examination of the record as a whole convinces me that the elements of inadequacy, conclusoriness and discursiveness of proof and damages theory on both sides, leading as they did in this case to awards as divergent as $226,948 by the one court and $58,147 by the other, call at this juncture for a choice of neither, but instead that the case be remitted to Trial Term to afford further opportunity to each party to more clearly develop its position on compensatory damages. (See Cohen and Karger, Powers of the New York Court of Appeals, § 171, subd [c].)

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in memorandum; Judge Fuchs-berg dissents and votes to reverse and remit for retrial on the issue of damages in a separate opinion.

Order affirmed.  