Posted by: Patricia Salkin | December 18, 2016

NY Appellate Court Holds Claimant’s De Facto Taking Claim was Untimely

The claimant, 594 Associates, Inc., acquired the subject property, a vacant and unimproved lot on Staten Island, in 1985. The entire lot was designated freshwater wetlands or wetlands adjacent area, and is subject to regulations precluding its development. In October 2010, the City of New York, as part of its South Richmond Bluebelt, Phase 3, project, acquired the property from the claimant by eminent domain. Thereafter, the claimant filed a claim for damages resulting from the taking. In this case, claimant appealed from an order of the Supreme Court, Richmond County, which granted the condemnor’s motion to strike the claimant’s appraisal report and preclude the claimant from offering any testimony concerning the contents of the report at trial.

The court first noted that a de facto taking claim is governed by the three-year statute of limitations applicable to claims to recover damages for injury to property set forth in CPLR 214(4). Here, because the record established that the headwall and overflow outlet were readily visible when the alleged taking occurred in September 2005, the Supreme Court properly determined that the claimant’s time to bring any claim for damages for the alleged de facto taking expired in September 2008. Moreover, contrary to the claimant’s contention, the court held that the continuous wrong doctrine was not applicable to its de facto taking claim. Accordingly the decision to grant the City’s motion to strike the claimant’s appraisal report and preclude it from offering any testimony concerning the report’s contents on that ground was proper.

In the Matter of South Richmond Bluebelt, Phase 3, 35 N.Y.S.3d 628 (2d Dep’t 2016)


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