Posted by: Patricia Salkin | May 17, 2014

Fed. Dist. Court in NY Finds Takings Claims for Placement of Verizon Terminal Boxes Not Ripe Because Mechanisms for Seeking Just Compensation Were Not Taken

Plaintiffs brought an action on behalf of themselves and on behalf of all others similarly situated against Verizon New York, Inc. (“Verizon New York”), Verizon Communications, Inc. Plaintiffs contended that the placement of Verizon’s terminal boxes on their property constituted an unconstitutional “taking” for public use without just compensation, as prohibited by the Fifth Amendment. On December 17, 2007, Plaintiffs’ counsel filed a putative class action against Verizon in New York State Supreme Court, Kings County. The case went through the NY court system and the Court of Appeals ruled that: 1) the Plaintiffs had stated a claim for inverse condemnation; 2) their inverse condemnation claim was not barred by limitations; 3) their deceptive trade practices claim was barred by limitations; and 4) their unjust enrichment claim was duplicative of their other claims. Plaintiffs’ second amended complaint asserted claims for violations of Plaintiffs’ procedural due process rights under the Fourteenth Amendment and right to be free of a taking without just compensation under the Fifth Amendment.

Plaintiffs argued in federal court that the Williamson County ripeness test does not apply here because: 1) the exhaustion requirement applies only to regulatory, rather than physical takings claims; 2) Plaintiffs’ second amended complaint includes a cause of action sounding in procedural due process; and 3) New York State does not provide a “reasonable, certain, and adequate provision for obtaining compensation,” because each Plaintiff may be required to sue Verizon individually. The Court reasoned that, since the Fifth Amendment does not require that just compensation “be paid in advance of, or contemporaneously with, the taking,” the State’s action is not “complete” until the party seeking compensation has exhausted any available “reasonable and adequate provision[s] for obtaining compensation after the taking.” Plaintiffs’ claims were found unripe because Plaintiffs have not pursued the available procedures for seeking just compensation provided under New York State law through an inverse condemnation action. The court further concluded that a state’s procedure for obtaining compensation is available and adequate even where it remains unsure and undeveloped as long as a remedy potentially is available. Accordingly, because Plaintiffs have not pursued the mechanisms for seeking just compensation provided under New York State law, the court held Plaintiffs’ claims are not ripe for review.

Corsello v Verizon New York, Inc., 976 F. Supp. 2d 354 (EDNY 9/30/2013)

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