Eminent Domain Law

AppDiv, Second Dept.

(memorandum opinion)

In a condemnation proceeding, condemnee appealed from Supreme Court's grant of the city's motion to strike condemnee's appraisal report. The Appellate Division affirmed, holding that condemnee's claim of an earlier “de-facto” taking was time-barred.

Condemnee acquired a vacant and unimproved lot on Staten Island in 1985. The lot is located in a freshwater wetlands or wetlands adjacent area, and regulations preclude its development. In 2010, the City of New York acquired the property by eminent domain. Condemnee filed a claim for compensation, and the parties exchanged appraisal reports. Condemnee's appraise valued the property as of September, 2005, contending that the city had effectively appropriated the property at that time by installing a headwall on the property's border with an adjacent parcel. The headwall contained an outlet for storm drains, causing storm water to accumulate on the property during storms. Condemnee alleged that it was unaware of the headwall until 2011 because the headwall and the overflow outlet were not visible from the street.

The city moved to strike condemnee's appraisal report because any claim condemnee might have had for a de-facto taking in 2005 was now barred by the statute of limitations. Supreme Court agreed and granted the city's motion.

In affirming, the Appellate Division conceded that if a condemnee can establish that there has been a de-facto taking before a condemnor proceeds with a formal condemnation, the condemnee is entitled to compensation from the date of the formal condemnation. But the court then noted that a de-facto taking claim is governed by CPLR 214(4)'s three-year statute of limitations. Because three years had passed, and the headwall was readily visible in 2005, the de-facto taking claim was barred. As a result, Supreme Court properly struck the 2005 appraisal report.

COMMENT

The statute of limitations starts to run on a de-facto taking claim when the government completes the action that gives rise to the landowner's claim. For instance, in Sarnelli v City of New York, 256 AD2d 399, 400-01, the court held that the condemnee's de-facto taking claim was time barred because the condemnor fenced off the land, began construction of railways, and denied condemnee's access to the parcel 10 years earlier before the claim was brought. Similarly, in Carr v Town of Fleming, 122 AD2d 540, 541, the court dismissed a de-facto taking claim resulting from installation of a sewer line because the sewer line had been installed more than 10 years earlier. By contrast, the Appellate Division upheld the trial court's denial of the town's motion to dismiss landowner's continuing trespass claim, based on the same sewer line, because the town had not established that landowner had knowledge of the sewer line's existence at the time it was installed

When the government entity expands the area of the alleged interference over a course of years, one federal court has applied the continuing wrong doctrine to hold that the statute of limitations does not start to run until the landowner reasonably believes the government has completed its expansion. In Gache v Town of Harrison, N.Y., 813 F Supp 1037, the court denied the town's summary judgment motion when the town had expanded its landfill operation over landowner's property over a period of time. Noting that the government's action was not a one-shot appropriation, the court concluded that “each new dumping onto new parts of plaintiff's land might be a new de facto appropriation.” Id. at 1047. And each new appropriation, as a result, would provide separate causes of action that make the condemnee's de-facto taking claim accrue at different times .

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