DAMAGES FOR FLOODING ARE ALL WET IN A CONDEMNATION PROCEEDING.

          The First Department handed down an interesting decision distinguishing an eminent domain claim from a tort claim.  In 82 Willis, LLC v The City of New York, ____ AD3d ____ [1st Dept 2019], 2019 NY Slip Op 08162, the Claimant filed a claim pursuant to EDPL Sec. 503 in the condemnation proceeding asserting a taking for an easement over its lot.  When it submitted its appraisal, it sought damages for flooding after rainfall.  The City moved to strike the appraisal on the basis that the flooding damages do not result from the taking of Claimant’s property.  Rather, the flooding claim must be asserted in a separate tort proceeding to recover construction damages.

          The Court held that because the City did not take Claimant’s property pursuant to a de jure taking, it may not pursue a claim to recover just compensation or consequential damages resulting from the flooding in this eminent domain valuation proceeding.

          The Court further held, Claimant’s claim for a de facto taking or inverse condemnation also fails as a matter of law.  Inverse condemnation is the “manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted” (Corsello v Verizon N.Y., Inc., 18 NY3d 777, 785-786 [2012]).  To succeed on an inverse condemnation claim, a property owner must show “that the government has intruded onto the [owner’s] property and interfered with the owner’s property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner” (O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]).  “A de facto taking can consist of either a permanent ouster of the owner, or a permanent interference with the owner’s physical use, possession, and enjoyment of the property, by one having condemnation powers” (Weaver v Town of Rush, 1 AD3d 920, 923 [4th Dept 2003]; see City of Buffalo v Clement Co., 28 NY2d 241, 255 [1971]).  “The sine qua non for such a cause of action is that defendant’s conduct must constitute a permanent physical occupation of plaintiffs’ property amounting to the exercise of dominion and control thereof” (Reiss v Consolidated Edison Co. of N.Y., 228 AD2d 59, 61 [3d Dept 1996], appeal dismissed 89 NY2d 1085 [1997], lv denied 90 NY2d 807 [1997], cert denied 522 US 1113 [1998]).  “In a modern inverse condemnation action, an owner whose property has been taken de facto may sue the entity that took it to obtain just compensation, and if the action is successful the defendant has no choice in the matter—the compensation must be paid” (Corsello, 18 NY3d at 786).

          The claim here for inverse condemnation is legally flawed, since the interference with claimant’s property rights, as set forth in its own appraisal report, is not sufficiently permanent to constitute a de facto taking as a matter of law (Greece Ridge, LLC v State of New York, 130 AD3d 1559, 1560-1561 [4th Dept 2015] [change to storm drainage system near the plaintiff’s property, causing flooding during periods of heavy rainfall, legal insufficient to support claim for inverse condemnation]).

          In light of these holdings, the Court did not address the timeliness of the inverse condemnation claim.

Posted in Flooding, Inverse Condemnation, Tort Claim for Flooding, Uncategorized
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