Rice v. RITZ ASSOCS., INC.

58 N.Y.2d 923 (1983)

Henry H. Rice, Appellant, v. Ritz Associates, Inc., Respondent.

Court of Appeals of the State of New York.

Argued January 11, 1983.

Decided February 17, 1983.

Marvin E. Frankel, H. Richard Penn and Barry G. Felder for appellant.

J. Irwin Shapiro and John Drew for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and SIMONS concur; Judge MEYER taking no part.

*924MEMORANDUM.

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (88 AD2d 513).

As to plaintiff's contention that by virtue of the lease there was an effective transfer of the air rights of the Rice parcel to the Ritz parcel, thereby constituting an "incumbrance" on the Rice parcel within the contemplation of the *925 appraisal procedure clause explicitly set forth in the lease which the prevailing appraisers failed to consider in their appraisal, we express no view with respect to it as this issue was not presented to or considered by the trial court. (Farr v Newman, 14 N.Y.2d 183, 188; see, also, Telaro v Telaro, 25 N.Y.2d 433, 438; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 162, p 631.)

Order affirmed, with costs, in a memorandum.