THINK TWICE BEFORE AGREEING TO ALLOW STREET ARTISTS TO PAINT ON YOUR BUILDING

The United States District Court for the Eastern District of New York refused to set aside the Court’s findings of fact and conclusions of law and grant a new trial to Cohen et al. v G & M Realty L.P. et anos, Case No. 13-CV-05612 (FB) (RLM).  In an unusual decision, Senior District Judge Frederic Block awarded $6,750,000 as statutory damages for the willful destruction of Plaintiffs’ works of visual art by Defendant Gerald Wolkoff.  The art was graffiti on a group of dilapidated buildings in Long Island City, Queens. … read more

Posted in Graffiti, Protected Art, Visual Artists Rights Act of 1990
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TAXES ON PARKLAND – NEVER

The Second Department handed down an interesting case today, Town of North Hempstead v County of Nassau, ___ AD3d ___, June 6, 2018.  The facts are somewhat difficult, but I shall try to simplify.  In 2005, land was conveyed to the Town of North Hempstead for use as a public park.  The real property was used as a park since that date. The Town failed to record the 2005 deed until December 2008.  Meanwhile the County was assessing taxes on the land and sold the tax liens to an individual. … read more

Posted in parklands, RPTL 406, Tax Assessment
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ANOTHER UNCONSTITUTIONAL TAKING CLAIM DISMISSED

In our May 11, 2018 blog, we wrote about the Second Department’s affirmance of the dismissal of a claim by Yellow Cab Medallion owners that their property was taken when the City of New York permitted Uber and other for hire vehicles to provide on demand ground transportation. The Court held, inter alia: Moreover, we agree with the Supreme Court’s determination that the TLC’s alleged decision to “allow black cars to pick up e-hails” did not, as a matter of law, constitute an unconstitutional taking of the petitioners’ property (see… read more

Posted in Inverse Condemnation
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HOW DO WE GET TO THE BEACH?

Our Hawaiian friend, Robert T. Thomas, brought an Eleventh Circuit Court of Appeals decision to our attention.  The case, Chmielewski v The City of St. Pete Beach, was decided on May 16, 2018.  Robert writes an excellent blog, inversecondemnation.com.  The blog must be considered mandatory reading for anyone interested in eminent domain. In the Chmielewski case, the Court affirmed a jury verdict in favor of a property owner who asserted that the City’s invitation to the public to access the beach by way of the owner’s privately-owned land was a… read more

Posted in Beach Access, Easements, Title
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ANOTHER FIFTH AMENDMENT CLAIM STRUCK DOWN

          The Second Department held that the City of New York did not take property from taxicab companies that own medallions.  The proceeding arises out of the rapid growth of for-hire vehicle services provided by companies such as Uber which allow passengers to use a smartphone application to electronically request on-demand ground transportation. The Court held, inter alia: Moreover, we agree with the Supreme Court’s determination that the TLC’s alleged decision to “allow black cars to pick up e-hails” did not, as a matter of law, constitute an unconstitutional taking… read more

Posted in Fifth Amendment, Inverse Condemnation, Regulatory Taking
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CAN TENANTS FILE PETITIONS TO REDUCE ASSESSMENTS? MATTER OF LARCHMONT PANCAKE HOUSE

On May 8, 2018, the Court of Appeals granted leave to appeal the decision of the Appellate Division, Second Department in Matter of Larchmont Pancake House v Board of Assessors, 153 AD3d 521 (2d Dept 2017). The decision caused a great deal of concern to the Tax Certiorari Bar.  Briefly stated, the Second Department held that while a tenant is an aggrieved party within the meaning of the RPTL because assessments have a direct effect on its pecuniary interests, Article 5 of the RPTL requires that the property owner file… read more

Posted in Tax Certiorari
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MATTER OF ADIRONDACK HISTORICAL ASSOCIATION: A RARE VICTORY UNDER EDPL 207

The Eminent Domain Procedure Law (EDPL) is the comprehensive law that uniformly dictates the procedures that must be followed by the state, municipalities and other entities with the power of eminent domain.  With certain exceptions, not relevant here, public hearings must be held before the condemnation may take place.  Following those hearings, the condemnor must make a determination and findings and publish a “brief synopsis.” The determination and findings must include the “public use, benefit or purpose” of the proposed project, the approximate location and the reasons for selecting the… read more

Posted in EDPL 207, Environmental Challenge
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WHAT A JUDGE SHOULD DO IF THE APPRAISAL IS DEFECTIVE

In a recent case, the appraisal prepared by Claimant specifically set forth a complete narrative of how the damages to the property occurred together with an analysis and calculations. The appraisal further calculated the before and after results following the takings. An appraisal is not the substitute for witnesses’ testimony. Case law emphatically holds than an appraisal is not the substitute for an expert’s direct testimony. The appraisal report is not in itself evidence; its function is to enable adequate and intelligent preparations of the issues for trial and to… read more

Posted in Appraisal, Defective Appraisal, Evidence
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CLARITY FOR NEW YORK TAKINGS LAW

Determining whether or not a government regulation constitutes a “taking” for the purposes of the Fifth Amendment can be a complex endeavor.  The recent Second Department decision of Matter of New Creek Bluebelt, Phase 3 (Baycrest Manor Inc.), ___ A.D.3d ____, 2017 N.Y. App. Div. LEXIS 8042, (November 15, 2017), provides some guidance on three important regulatory takings issues. The underling case was not a regulatory taking per se.  Rather, the City of New York condemned property that was 100% wetlands.  Had the City not taken title, the owner could… read more

Posted in Regulatory Taking, Subsequent Purchases, Wetlands
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ANOTHER THING ABOUT MATTER OF TOWN OF OYSTER BAY v 55 MOTOR AVENUE COMPANY, LLC

In our last posted blog, we criticized the Second Department’s decision in the above case for confusing what is necessary to prove a reasonable probability of rezoning and the ability to develop land pursuant to a special permit. But there is another problem with the Appellate Division’s decision.  It held that although three parcels were physically contiguous and had unity of ownership, parcel 3 could not be considered as having unity of use because the claimant had entered into a ground lease for parcel 3 seventeen months before the vesting… read more

Posted in Highest and Best Use, Unity of Ownership, Valuation Free and Clear
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