New York State Court of Claims

New York State Court of Claims

FES REALTY CORP. v. THE STATE OF NEW YORK, #2004-033-053, Claim No. 106037, Motion Nos. M-66355, CM-67154


Synopsis



Case Information

UID:
2004-033-053
Claimant(s):
FES REALTY CORP.
Claimant short name:
FES REALTY CORP.
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106037
Motion number(s):
M-66355
Cross-motion number(s):
CM-67154
Judge:
JAMES J. LACK
Claimant's attorney:
Siegel, Fenchel & Peddy, P.C.By: Saul R. Fenchel, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Rose Farrell Lowe, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 30, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for the appropriation of real property belonging to FES Realty Co. (hereinafter "claimant"). The property is located on the northeast corner of the intersection of State Route 112 and the Long Island Expressway.
Claimant asserts this claim as a de facto taking of its property. Claimant moves this Court for partial summary judgment in that claimant seeks a declaration by this Court that a de facto taking did occur.[1] In opposition, the defendant cross moves for an order dismissing the claim.[2]

As stated, claimant's property is a corner parcel located at the intersection of State Route 112 and the Long Island Expressway and consists of approximately 1.6 acres. On or about October 3, 2001, claimant submitted an application to Exxon Mobil to build an automobile service station on the property. The defendant received notice of the application because the approval of the Town of Brookhaven was required, and, therefore, all property owners within 200 feet of the subject property had to be notified. The defendant was the only entity notified which objected to the application. The basis for the objection was that the defendant was planning a project in the area and the subject property was within the area that the defendant would be appropriating for a recharge basin. Thereafter, claimant's attorney attempted to ascertain from the defendant the exact area of the subject property which would be taken to determine if the service station could still be built.

The defendant, in a letter to claimant, reiterated its position that the defendant would be appropriating a portion of claimant's property. The letter went on to provide claimant with a "punch list" of items necessary in order for claimant to move ahead with its project. The claimant did not attempt any of the items on the punch list. The Town of Brookhaven denied the application and Exxon Mobil withdrew from the deal.

In support of its motion for partial summary judgment, claimant argues that the defendant's objection kept the Town of Brookhaven from granting claimant the necessary application. According to claimant, the defendant interfered and blocked the claimant's property preventing claimant from utilizing the property.

In City of Buffalo v J.W. Clement, 28 NY2d 241, the Court of Appeals laid out the criteria for a de facto taking. In 1954, the J. W Clement Company (hereinafter "Clement") received notification that a hearing would be held by the city concerning an upcoming project. Investigation by Clement into this project, showed that several properties in the area would be taken by the city for this project. In 1957, Clement was told that his property would be taken. Clement had a successful publishing company and in anticipation of the appropriation, he began to move his operation to another location. The appropriation took place in 1963. The city admitted that in 1959 it began lowering property assessments because of the pending condemnation. Clement argued that a de facto taking had occurred in 1959.

The Court of Appeals, in examining de facto takings, stated:
the concept of de facto taking has traditionally been limited to situations involving a direct invasion of the condemnee's property or a direct legal restraint on its use (Leeds v. State of New York, 20 N Y 2d 701, supra; Matter of Keystone Assoc. v. Moerdler, 19 N Y 2d 78, supra ; Oswego & Syracuse R. R. Co. v. State of New York, 226 N. Y. 351, supra; Forster v. Scott, 136 N. Y. 577, supra), and to hold that there can be a de facto appropriation absent a physical invasion or direct legal restraint would, needless to say, be to do violence to a workable rule of law. It is our view that only the most obvious injustice compels such a result.

City of Buffalo
at 253. The Court held that a de facto taking requires: a physical entry by the condemnor; a physical ouster of the owner; a legal interference with the physical use, possession or enjoyment of the property; or a legal interference with the owner's power of disposition of the property (supra at 255). Applying the rule to Clement, the Court of Appeals held that a de facto taking had not occurred.

Claimant points to the matter of Turiano v State of New York, (Claim 70854, Nadel, J., UID #2000-014-102) in support of his argument. In Turiano, claimant bought property which later became subjected to the Tidal Wetlands Act. The vesting date by the State was in 1984, however, the Court found that a de facto taking occurred in 1978. In 1978, the State informed the claimant that pursuant to the Tidal Wetlands Act, he would not be able to improve his property. The Court found that a de facto taking occurred.

In the present case, no law exists which restricts claimant from developing his property. What has changed is the way in which claimant may develop his property. To placate the defendant, claimant would have to complete the punch list of items in order to be able to develop the property. The defendant at no time entered onto or otherwise physically entered the property. If a de jure taking had occurred, claimant would have been able to use a pre-condemnation knowledge time frame to value the property. Claimant's valuation would be able to ignore any change in zone or denial of the application for the pre-vesting value (Schad v State of New York, 259 AD2d 691).

Accordingly, claimant's motion for partial summary judgment is denied. The defendant's cross-motion for dismissal is granted. The Clerk of the Court is directed to close the file.


March 30, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on claimant's motion for partial summary judgment: Notice of Motion for Partial Summary Judgment dated February 3, 2003 and filed February 4, 2003; Affidavit of Fred Colin with annexed Exhibits 1-4 sworn to January 27, 2003 and filed February 4, 2003; Claimant's Memorandum of Law for Partial Summary Judgment of Saul R. Fenchel, Esq. dated February 3, 2003 and received February 4, 2003; Affirmation in Opposition to Motion for Partial Summary Judgment of Rose Farrell Lowe, AAG, with annexed Exhibits A-E dated July 22, 2003 and filed July 23, 2003.
[2]The following papers have been read and considered on defendant's cross-motion to dismiss the claim: Cross-Motion dated July 22, 2003 and filed July 23, 2003; Affirmation in Opposition to Motion for Partial Summary Judgment and In Support of Cross-Motion to Dismiss Claim of Rose Farrell Lowe, AAG with annexed Exhibits A-E dated July 22, 2003 and filed July 23, 2003; Affirmation in Opposition to Cross-Motion of Saul R. Fenchel, Esq. dated September 23, 2003 and filed September 24, 2003; Affirmation of David A. Sloane, Esq. dated September 19, 2003 and filed September 24, 2003; Affidavit of Fred Colin sworn to September 22, 2003 and filed September 24, 2003; Claimant's Memorandum of Law of Saul R. Fenchel, Esq. with annexed exhibit dated September 23, 2003 and received September 26, 2003; Affirmation as Sur-Reply in Opposition to Motion and in Support of Cross-Motion of Rose Farrell Lowe, AAG with annexed Exhibits A-C dated November 21, 2003 and filed November 24, 2003.