THERE CAN BE NO LIMIT ON JUST COMPENSATION

          We recently took over some files that pertained to takings by the County of Suffolk.  The prior attorney inserted a dollar amount in the filed claim.  Later, upon the preparation of the pre-trial order, the condemnor’s counsel objected to the insertion of a higher amount which matched appraised damages.  Former counsel stated that he inserted an amount into the claim merely as a placeholder until an appraisal was completed.

          Eminent Domain Procedure Law (“EDPL”) § 504 specifies the information that should be included in a claim.  It does not require a petitioner/condemnee to state the amount of damages.  According to subsection C of that statue, all that is required is “a general statement of the nature and type of damages claimed….”  The purpose of the claim is to let the respondent/condemnor know, within the timeframe set by the court pursuant to EDPL § 503(B), that additional compensation in excess of the EDPL § 204 advance payment is being sought.

          The amount of damages sought is unknown at the time the claim is filed.  This is because appraisal reports are not completed until after the claim is filed.  See EDPL § 508; 22 NYCRR §§ 202.59 and 202.61.  As the court rules provide, the appraisal reports are exchanged nine months after the service of the claim.  22 NYCRR § 202.61(e) says that “[u]pon trial, all parties shall be limited in their affirmative proof of value to matters set forth in their respective appraisal reports.  Any party who fails to file an appraisal report as required by this section shall be precluded from offering any appraisal testimony on value.”

          Thus, it is the appraisal report, not the claim that identifies the damages that are sought.

          Furthermore, a “condemnation proceeding is not a private litigation.  There is a constitutional mandate upon the court to give just and fair compensation for any property taken.  This means ‘just’ to the claimant and ‘just’ to the people who are required to pay for it.”  Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280, 282 (2d Dept 1994) citing Micali Cadillac-Oldsmobile v State of New York (Reiss), 104 AD2d 477,481, quoting from, Matter of County of Nassau, 43 AD2d 45, 48.

          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. I., Subd. 7.  The constitution requirement of “just compensation” requires 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 80, 87 (1969); Marraro v State of New York, 12 NY2d 285, 292-293 (1963).

          Indeed, it is well settled that no private property shall be appropriated to public use unless a full and exact equivalent for it be returned to the owner.  As Justice Brewer stated, “[t]he legislature may determine what private property is need for public purposes — that is a question of a political and legislative character; but when the taking has been ordered, then the question of compensation is judicial.”  Monongahela Nav. Co. v United States, 148 US 312, 327 (1893).

Authored by Joshua H. Rikon and Michael Rikon.

Posted in Condemnation Claims, Just Compensation, There can be no limit to Just Compensation, Uncategorized
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