New York Law Journal Letters to the Editor: Correcting the Record on Eminent Domain Law in New York

Michael Rikon wrote a letter to the editor in the November 17, 2015, edition of the New York Law Journal titled, “Correcting the Record on Eminent Domain Law in New York.”

In his letter, Mr. Rikon responded to Fred Kolikoff, a recently-retired New York City Law Department Assistant Corporation Counsel, who submitted erroneous letters to the editor in response to Mr. Rikon’s New York Law Journal eminent domain articles.  Mr. Rikon’s complete letter to the editor is reprinted here:

This letter is written in response to the letter to the editor, “Burden of Proof In Condemnation Proceedings,” by Fred Kolikoff (NYLJ, Nov. 4).  The letter states that “[t]he author is an attorney in New York.”

Besides his November 4 response to my eminent domain article, “New York’s Exclusive Procedure on ‘Taking’ Needs Amendment,” (NYLJ, Oct. 30), Mr. Kolikoff also submitted a letter to the editor, “Drafts Not Required for Retention Under Appraisal Standards,” (NYLJ, Sept. 1), responding to my eminent domain article, “The Condemnation Expert’s File: Minefield for Cross-Examination,” (NYLJ, Aug. 25).

Mr. Kolikoff’s repeated letters should disclose that he is a recently-retired New York City Law Department Assistant Corporation Counsel who has been litigating and losing eminent domain proceedings against this firm for at least the last 21 years.  See, e.g., In re City of New York, 200 A.D.2d 620 (2d Dep’t 1994) (losing on issue of reasonable value of claimant’s use and occupancy); Matter of City of New York [Powell’s Cove], 17 Misc.3d 715 (Sup. Ct. Kings County 2007) (losing on statutory interest issue); Matter of Mill Creek Phase 1 Staten Island Bluebelt System [NYCTL 1998-1 Trust], 10 N.Y.3d 898 (2008) (losing on interest rate issue); Matter of City of New York [Powell’s Cove], 24 Misc.3d 1251(A) (Sup. Ct. Queens County 2009) (losing on additional allowances and attorneys’ fees issues); Matter of Willis Avenue Bridge Replacement, 80 A.D.3d 435 (2d Dep’t 2011) (losing on advance payment issue); Matter of City of New York [Ramfis Realty, Inc.], 37 Misc.3d 1207(A) (Sup. Ct. Richmond County 2012) (losing on value of just compensation award after trial); Matter of New Creek Bluebelt, Phase 4 [Paolella], 122 A.D.3d 859 (2d Dep’t 2014) (losing on wetlands valuation issue).

It now seems that Mr. Kolikoff has taken it upon himself in retirement to erroneously comment on my articles.  Mr. Kolikoff states that I am incorrect and that a condemnation claimant “has the burden of proof as to the amount of damages (or compensation) to which the plaintiff (or claimant) is entitled.”  Mr. Kolikoff then cites Grossman v. Rankin, 43 N.Y.2d 493, 502 (1977), to support his proposition.  But, Grossman is not a condemnation case and is not analogous.

Grossman discusses certain classifications of civil service of the Assistant Corporation Counsel positions in the Law Department of the City of New York and whether the positions under review were properly classified under the State Constitution (NY Const., art. V, § 6) and the Civil Service Law (§ 41).  43 N.Y.2d 493 (1977).  The court held that the classifications were within statutory and constitutional confines.  Id. at 500.

What Mr. Kolikoff was inaptly referring to was the petitioner’s “contention [] that the courts below erred in not finding that the burden of proof was on respondents to show that an examination [of ‘whether such position, as then constituted, is properly classified in the exempt class,’ Civil Service Law, § 41(2), after a vacancy occurs in a position in the exempt class] was not practicable.”  Id. at 502.

Grossman v. Rankin is not an eminent domain proceeding.  Grossman is inapposite because not only is it a mandamus case, but the party bearing the burden of proof in Grossman was the one asserting the affirmative of an issue.

Indeed, an eminent domain proceeding is not a unilateral challenge initiated by a property owner or in the nature of mandamus (concerning valuation).  The arbitrary and capricious standard does not apply to valuation in eminent domain proceedings.  Anyone who posits otherwise simply does not understand the basics of the New York Eminent Domain Procedure Law.

The Law in New York is well established that a condemnation proceeding is not a private litigation.  “There is a constitutional mandate upon the Court to give just and fair compensation for the property taken.  This means just to the claimant and just to the people who are required to pay for it.”  Yaphank Dev. Co. Inc. v County of Suffolk, 203 AD2d 280 (2d Dept 1994); see also Matter of State of New York (KKS Props., LLC), 119 AD3d 1033 (3d Dept 2014); Matter of Staten Island Bluebelt, 108 AD3d 773 (2d Dept 2013); Frank Micali Cadillac-Oldsmobile Inc. v State of New York, 104 AD2d 477 (2d Dept 1984); Matter of City of New York (Grantwood Retention), 33 Misc.3d 586 (Sup. Ct. Richmond County 2011) (Saitta, J.).

I hope that Mr. Kolikoff is aware that “the [condemnor] has an independent obligation to pay just compensation and, in connection therewith, to present its own appraisal of the property’s highest use and value.”  Chase Manhattan Bank, N.A. v. State, 103 A.D.2d 211, 221 (2d Dep’t 1984) (citations omitted).  Or, as the Honorable Thomas A. Dickerson more aptly wrote in Matter of Village of Irvington v. Sokolik, “There is no presumption of value and it is the court that has the burden to assure that just compensation is paid.”  13 Misc.3d 1220(A) (Sup. Ct. Westchester County 2006) (citation omitted).

I welcome fair comment and discussion to my articles, but these letters are the product of a personal animus and are so clearly erroneous.

Posted in Eminent Domain, Lawyers
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