Archive | 2022

The Condemnation of a Going Concern

Section 708 of the Eminent Domain Procedure Law (“EDPL”) provides that the acquisition of other than real property, the acquisition shall be in the manner and procedure prescribed for the acquisition of real property by the EDPL. The provision is hardly noticed.  There are no cases annotated in McKinney’s Volume 16A.  But there are cases out there for review if you know about them. Matter of Port Auth. Trans-Hudson Corp. (Hudson Rapid Tubes Corp.), 20 NY2d 457 (1967).  In this case, the Port Authority of New York and New Jersey… read more

Posted in Condemnation of Going Concern, EDPL Section 708, Valuation of Going Concern
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When an Easement Is Really a Direct Taking

The right of an owner to just compensation for property taken by eminent domain is one guaranteed by the federal and state constitutions.  (Federal Constitution, Fourteenth Amendment; NY Constitution, Art. 1, Subd. 7).  The constitutional requirement of “just compensation” mandates that the property owner be indemnified so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred.  City of Buffalo v J.W. Clement Co., Inc., 28 NY2d 241 258 (1971); Rose v State of New York, 24 NY2d… read more

Posted in Condemnation, Direct Taking, Easements, Eminent Domain
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The Expert Witness in a Condemnation Trial

The fundamental rule is that the qualifications of a witness as an expert is a determination within the sound discretion of the trial court.  Smith v City of New York, 238 AD2d 500 (2d Dept 1997). An expert, once qualified, is allowed to testify as to the expert’s opinion.  Sec. 7-301, Prince on Evidence (11th Ed. P. 456).  In a condemnation case, the evidence before the court will be expert testimony by appraisers, zoning experts and other valuation experts. As one court has stated, “impartiality should be the touchstone of… read more

Posted in Appraisers, Condemnation, Eminent Domain, Expert Witness, Independent Expert, Opinion Evidence, Qualifications
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May a Religious Organization’s Land be Condemned?

Yes, if the procedural and due process requirements of the Eminent Domain Procedure Law are complied, a church or synagogue’s land may be taken by eminent domain. Religious organizations often alleged that they are protected by the Religious Land Use and Institutionalized Persons Act (42 USC § 2000cc et seq.).  However, the Act only applies to a zoning and landmarking law.  Case law provides that a government’s exercise of eminent domain does not constitute an application of a zoning law.  See St. John’s United Church of Christ v City of… read more

Posted in Eminent Domain, Religious Land Use & Institutionalized Persons Act, Religious Organization
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Condemnation Award of $669,00 Made for Staten Island Wetlands

The Appellate Division, Second Department affirmed an award of $669,00 made by Justice Wayne P. Saitta.  Matter of City of New York, New Creek Bluebelt (Galarza). This condemnation case involved the taking of a vacant 21,000 square foot lot in Staten Island which was designated 100% wetlands. The former property owner Ivan Galarza retained Goldstein, Rikon, Rikon & Levi, P.C.  The Manhattan law firm was founded in 1923 and limits its practice to eminent domain – condemnation matters. Wetland cases present difficult legal and valuation issues. As Justice Saitta wrote:… read more

Posted in Increment, Valuation, Wetlands
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