Eminent Domain and New York’s Requirement for an Advance Payment: Stop the Monkey Business

We wrote on several occasions of the State of New York’s improper conduct of depositing the authorized advance payment into the State’s Comptroller’s Office. The State fails to provide any advance notice and refuses to tell the claimant when the deposit was made or why.  The claimant first learns the “when” and the “why” when the State submits an Answer.  And often times the purported rationale is questionable. Unless a court intervenes and stops this improper conduct, the State’s automatic deposits of the advance payment will continue unabated and a… read more

Posted in Advance Payments, Distribution Proceeding, Eminent Domain
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Why Adjust Expert Fee in An Application Pursuant to EDPL Section 701?

In a recent decision by the Honorable Wayne P. Saitta, Supreme Court, Kings County, the court discussing Section 701 of the Eminent Domain Procedure Law stated: Where the proof offered by a claimant has had no effect on the final award, then it cannot be found to have been necessary to achieve just and adequate compensation and the court will not award an additional allowance as to those efforts.  (First Bank & Trust Co. of Corning v State of New York, 184 AD2d 1034, [4th Dept 1992] affd 81 NY… read more

Posted in EDPL Sec. 701, Reimbursement of Legal Fees
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No Donald, You Can’t Do That

On October 9, 2020, the Ninth Circuit Court of Appeals held that Trump’s use of his emergency powers to build his long-promised border wall with military funds is illegal.  (And no, Mexico is not paying for the wall.)   $36 billion was slated for construction of about a dozen projects including two projects in the Laredo and El Paso areas.  The money was diverted from funds dedicated for military construction.  The projects in Texas would have covered more than 60 miles according to the American Civil Liberties Union.  Some experts… read more

Posted in Border Wall, Military Construction, Sierra Club v Trump
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Texas Bullet Train Gains Federal Approval

The high-speed train that promises to transport passengers between Dallas and Houston in 90 minutes has been approved by the Federal Railroad Administration according to Texas Central Railroad, the company in charge of the project.   The U.S. Department of Transportation’s Federal Railroad Administration issued the two key rulings, which provide the regulatory framework and the environmental review for the high-speed train, that Texas official were waiting on to move forward with the project, according to the company.  The announcement was first reported by the Houston Chronicle.   Texas Central… read more

Posted in Bullet Train, Consequential Damages, Uncategorized
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Remembering the Honorable Albert A. Blinder

Retired Court of Claims Judge Albert A. Blinder died on September 23, 2020.  He was just short of 95 and had an illustrious legal career. I was lucky to have been recommended to him as a law clerk when he was first appointed to the bench by Governor Nelson Rockefeller in 1973.  I was an Assistant Corporation Counsel for the City of New York serving in the Condemnation Division and had just completed a trial in the Court of Claim, City of New York v State of New York, 49… read more

Posted in Court of Claims, Judge Albert A. Blinder
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Lawsuit Seeking Compensation for Mandatory Store Closures – Who’s Going to Pay for My Loss?

Illinois’ attorney general asked a federal judge Monday to dismiss a lawsuit alleging Gov. J.B. Pritzker’s executive orders closing nonessential businesses and workplaces are unconstitutional. A group of Chicagoland business owners argued the governor’s COVID-19 restrictions amount to the confiscation of private property without monetary compensation.  Such an action would violate the U.S. and Illinois constitutions, they say. Those orders “caused the seizure of property, business interests and livelihoods of individuals across the state, forcing indefinite closures and the layoff of hundreds of thousands of people,” according to the group’s… read more

Posted in Pandemic, Police Power, Takings, Uncategorized
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Who’s in Charge Here: The Province of the Trial Court in a Condemnation Case

New York is one of only three states in the nation that does not allow trial by jury in an eminent domain case.  All claims against the State of New York and certain other state authorities have exclusive jurisdiction in the Court of Claims where, regardless of the nature of the claim, there are no jury trials.  Appropriation claims in the Court of Claims are certainly included and are tried by a Court of Claims Judge.  Other condemnation matters must be tried by a Justice of the Supreme Court.[i]  This… read more

Posted in Decision by Jury, Trial, Uncategorized
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Taking an Ancient Mound Access

The Ohio Supreme Court will hear a country club’s appeal of orders that it provides public access to the state historical agency to ancient burial mounds.   The lower courts ruled that the Ohio History Connection can reclaim the lease for the 2,000-year-old Octagon Mounds from Moundbuilders Country Club by eminent domain.   The Ohio History Connection has leased the 134-acre property to Moundbuilders where golf has been played since 1910.  The agency wants to buy back the lease and convert the property to a park to improve public access… read more

Posted in Access, Historic Burial, Site, Uncategorized
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The Atlantic Coast Pipeline is No Mas

The natural gas project which would have crossed the Appalachian Trail has been canceled as delays and costs mount.  This blog has reported on the pipeline frequently.  See “The Atlantic Coast Pipeline. Bulldozers at Your Doorstep,” June 16, 2020.  At that time, it was noted that the U.S. Supreme Court ruled that the Atlantic Coast Pipeline can traverse sixteen miles within the George Washington National Forest.  The case, U.S. Forest Service v Cowpasture River Prevention Assoc., 590 US ___ (2020) considered the grant of a special permit from the Forest… read more

Posted in Appalachian Trial, Pipelines, Sioux Nation, Uncategorized
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The Court of Appeals Upholds a Pipeline that May Never Be Built

The Court of Appeals handed down a 25-page decision on June 25, 2020 that approved the condemnation of private property for a pipeline that may never be built. In 2017, the Federal Energy Regulatory Commission issued a Certificate of Public Convenience and Necessity to National Fuel Gas Supply for its proposed construction of a 99-mile natural gas pipeline spanning from Pennsylvania to Western New York. The issue before New York’s highest court was did the Certificate of Public Convenience and Necessity which did not condition Natural Fuel’s eminent domain power… read more

Posted in EDPL 204(B), FERC, Pipelines, Water Quality Certificate
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