Just when you thought you heard it all, up comes a new, ridiculous statement by a condemnor.
I was in court yesterday before a judge who was trying his best to settle a claim for the partial taking of an apartment building and two stores. I was not sanguine of a favorable result based on the spread of damages. The property was very valuable on Third Avenue in Manhattan. In the course of discussions, the MTA attorneys told the judge that “we already paid out more than $5 million to claimant.”
I was astounded. First, most lawyers know that the advance payment is irrelevant to the just compensation to be awarded by the court. If that statement was made to a Court of Claims Judge, the State Attorney General would immediately request recusal.
Should my client write a thank you note to the MTA for chopping up her building to build a subway entrance in the structure? No, the payment was partial just compensation.
The condemnor did no favor by paying an advance payment, the law demanded that it do so.
Pursuant to the Eminent Domain Procedure Law (“EDPL”), the condemnor is required to appraise the real property taken, to make an advance payment, and to do so, making “every reasonable and expeditious effort.” See EDPL §§ 101, 301, 302, 303 and 304. Of great importance is “[protecting] the interests of property owners and [ensuring] that their property is taken only in accord with proper procedure and for just compensation.” East Thirteenth Street Community Assoc. v New York State Urban Dev., 84 NY2d 287, 296 (1994).
The advance payment is “mandatory and seek[s] to alleviate the hardship imposed on owners in financing the purchase, rental or replacement of the property taken by eminent domain.” In re William Cullen Bryant Park & Preserve, 87 Misc2d 1004, 1005 (N.Y. Sup. Ct. 1976); see City of New Rochelle v Sigel, 65 Misc2d 962, 965 (N.Y. Sup. Ct. 1970) (“the property owner should be placed in a position where at the time the title is divested he receives some moneys to enable him to do what is necessary to compensate him for his loss”); see also, e.g., Whitehall Corners Inc. v State, 210 AD2d 398, 399 (2d Dept 1994) (“as stated by the Court of Appeals over 30 years ago, a condemnor is obliged to pay for the trade fixtures installed by a tenant on the basis that they are part of the real property being appropriated”).
Federal law provide by the Uniform Relocation Assistance Act of 1970 also prohibits delay in payment of just compensation. “[W]hen a condemnor avails itself of the formidable power of eminent domain, which is so often directed against people who, if it were up to them, would insist that the condemnor go elsewhere…the condemnor should do everything possible to reduced the adverse effects of the condemnation.” See 1974 Report of the State Commission on Eminent Domain and Real Property Tax Assessment Review3, Comment § 304, p. 27 (emphasis added).