Essentially we have three separate problems regarding two Broadway buildings originally contiguous to the construction site and condemned by the United States, allegedly because of the negligence of the defendants in connection with their excavation work on property already taken by the Government for the new United States Customs Court and a Federal office building.
1. As to a landlord (DeBruce Realty Corp.) I concur in the opinion of the majority that damages should be limited to the value, if any, by which the condemnation award for the damaged property could have been exceeded if the property had not been damaged.
2. As to the tenants (Dubin-Haskill Lining Corp. and Harry Kelvin, doing business as Kelvin Electronics) who have no *132interest in the buildings as such, I dissent. The majority opinion would leave them with no recourse, if, in fact, the condemnation took place because of the negligence of the defendants. Moving costs and other costs of relocation and additional rent in connection with obtaining new premises, etc., are all proper items of damage. As to limitation of damages to those occurring prior to April 30, 1964, the date of taking, it should be limited to the negligence that occurred prior to the date of taking, but consequential damages as a result thereof may have occurred thereafter.
3. With respect to permission granted to the defendants to amend their answers to plead as a general release, the stipulation of settlement between the United States and DeBruce Realty Corp. and its sole tenant, Kelvin Electronics, in the condemnation proceeding, I concur in part and dissent in part. The stipulation should only be permitted to be pleaded insofar as it may prevent duplication of damages and, therefore, it is only a partial defense.
I would: (1) affirm the orders of Special Term denying summary judgment; (2) grant leave to the plaintiff, DeBruce Realty Corp., to serve an amended complaint in accordance with the foregoing, and (3) modify the orders at Special Term in the DeBruce Realty Corp. and Kelvin Electronics actions to allow the defendants to plead a partial affirmative defense.
Capozzoli, J. P., McG-rvERN and Tilzer, JJ., concur with Steuer, J.; Kitpeermah, J., dissents, in part, and concurs, in part, in an opinion.
Orders of the Supreme Court, New York County, entered on November 15, 1968, in which Dubin-Haskill and Harry Kelvin are plaintiffs, reversed on the law and the motions for summary judgment dismissing the complaints granted. Order of said court, entered on November 15, 1968, in which DeBruce Realty is plaintiff, reversed on the law, and the motion for summary judgment dismissing the complaint granted, with leave to plaintiff DeBruce Realty to apply to Special Term within 20 days after service of a copy of the order herein by appellants on it, with notice of entry thereon, for leave to serve an amended complaint in accord with the opinion of this court filed herein, and, if such complaint is served, with leave to defendants to amend their answers as requested in the notice of motion. Appellants shall recover of plaintiffs-respondents one bill of $50 costs and disbursements of this appeal.