O'Brien v. City of Syracuse

• Decision Date: 05 November 1976
• Citation: 54 A.D.2d 186,388 N.Y.S.2d 866
• Parties: Application of Howard J. O'BRIEN, Jr., as Executor of the Estate of Howard J. O'Brien, Deceased, and F. Stuart O'Brien, Appellants, v. CITY OF SYRACUSE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 866

388 N.Y.S.2d 866

54 A.D.2d 186

Application of Howard J. O'BRIEN, Jr., as Executor of the Estate of Howard J. O'Brien, Deceased, and F Stuart O'Brien, Appellants, v. CITY OF SYRACUSE et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Nov. 5, 1976.

Oot & Fallon, Syracuse, for appellants (Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse, by John Lawton, Syracuse, of counsel).

Thomas J. Lowery, Jr., Syracuse, for respondents.

Before CARDAMONE, J.P., and SIMONS, MAHONEY, DILLON and GOLDMAN, JJ.

CARDAMONE, Justice Presiding.

In the instant case petitioners, owners of commercial realty in Syracuse, attempted to prove acts which resulted in a de facto appropriation of their property. They allege, in addition to the loss of rental income and reduction in market value, additional factors such as interruption of utility service, a public auction held by the respondent Urban Renewal Agency (URA) without their consent on the premises, building and construction materials piled around the building and interference with access as a result of construction.

Both the Fifth Amendment to the Federal Constitution and Article 1, section 7 of the New York State Constitution provide that property shall not be taken for public use without just compensation. In Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240 the Supreme Court defined the constitutional parameters of the Fifth Amendment's 'just compensation' clause and stated that 'A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a 'taking' in the constitutional sense' (id. at 285, 60 S.Ct. at 236). The New York courts have strictly adhered to the requirement of finding an actual taking. In the leading case of City of Buffalo v. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 the Court of Appeals held:

'Accordingly, the mere announcement of impending condemnations, coupled as it may well be with substantial delay and damage, does not, in the absence of other acts which may be translated into an exercise of Dominion and control by the condemning authority, constitute a taking so as to warrant awarding compensation' (id. at 257, 321 N.Y.S.2d at 359, 269 N.E.2d at 904) (emphasis supplied).

This court recently held in Fisher v. City of Syracuse, 46 A.D.2d 216, 361 N.Y.S.2d 773, mot. lv. to app. den. 36 N.Y.2d 642, 368 N.Y.S.2d 1025, 329 N.E.2d 676, cert. den. 423 U.S. 833, 96 S.Ct. 57, 46 L.Ed.2d 51 that damages suffered by 'condemnation blight' in the form of depreciation in value and increased maintenance costs during an inordinately long and dilatory implementation of an urban renewal program are not compensable.

Significant public policy considerations underlie the rule requiring an actual physical taking. Were the date of the announcement of the impending condemnation to constitute a 'de facto' taking, it would (1) impose an unwarranted burden upon the condemning authority, penalizing it for providing notice to a property owner and perhaps foster a converse policy of secrecy which 'would but raise (greater) havoc with an owner's rights' (28 N.Y.2d at 256, 321 N.Y.S.2d at 358, 269 N.E.2d at 904); (2) might render the construction of public improvements so inordinately expensive as materially to retard development of the state; and (3) create discrimination against public improvements since an owner should not be recompensed for every damage to his real estate, but only when the damage was inflicted for the public use (2A Nichols on Eminent Domain, Rev. 3rd Ed., Taking and Damage, § 6.44(1)).

Petitioners' proof at trial respecting these claims was not free from doubt; even were the allegations conclusively proven, they would not, taken cumulatively, constitute the dominion and control necessary to establish a de facto taking. We consider briefly each of petitioners O'Briens' claims.

The negligent failure to provide water service might give rise to municipal tort liability (see, 1A Antieau, Municipal Corporation Law, § 11.102), but on the facts here such interruption of service does not rise to the level of interference with possessory rights required to constitute a de facto appropriation, since no demand for restoration of service was made until after this action was commenced.

URA acquired a key to a tenant's premises in the O'Brien building, retained it for two years, and then conducted an auction on the premises without the landlord's consent after the tenant's lease had expired. This was undoubtedly a violation of the O'Briens' exclusive possessory rights. Where, however, the unauthorized entry amounts to no more than a temporary intrusion, compensation for any damages suffered may be obtained in an action for trespass. It is only where the intrusion is so extensive in scope or duration that it may be regarded as a taking in fact that the right to compensation under eminent domain can be invoked. Testimony established that during the construction of the federal complex, building materials were piled along the Water Street side of the O'Brien building, but access to the building itself, although restricted, was not totally obstructed. Under New York law, municipal corporations 'are liable where the injury an individual has received is a direct injury accomplished by a corporate act which is in the nature of a trespass upon him' (40 N.Y. Jur., Municipal Corps., § 976). However, a municipality may not ordinarily be held liable for the tortious conduct of independent contractors it employs (1A Antieau, supra, at § 11.04). Even were it assumed that respondents authorized the piling of materials against petitioners' building, the use of lands adjoining a construction site for the purpose of materials storage constitutes a mere trespass, not a taking (2 Nichols, supra, § 6.11, n.17). A temporary intrusion of such a limited nature, inflicting no mermanent damage, does not amount to the exercise of that degree of dominion and control indicative of a degree of dominion and control indicative of a de facto taking (Litchfield v. Bond, 186 N.Y. 66, 78 N.E. 719). Any inconvenience and depreciation in value suffered as a result of the impaired ingress and egress was incidental to a permissible exercise of the police powers and is Damnum absque injuria (Bopp v. State, 19 N.Y.2d 368, 280 N.Y.S.2d 135, 227 N.E.2d 37; Cities Serv. Oil Co. v. City of New York, 5 N.Y.2d 110, 180 N.Y.S.2d 769, 154 N.E.2d 814, cert. den. 360 U.S. 934, 79 S.Ct. 1453, 3 L.Ed.2d 1546; Jones Beach Blvd. Estate v. Moses, 268 N.Y. 362, 197 N.E. 313; Tucci v. State, 28 A.D.2d 774, 280 N.Y.S.2d 789, affd. 29 N.Y.2d 836, 327 N.Y.S.2d 851, 277 N.E.2d 784; Jablowski v. State, 267 App.Div. 54, 44 N.Y.S.2d 549, affd. 292 N.Y. 652, 55 N.E.2d 517).

Petitioners make several other arguments which they believe entitle them to relief. They assert that even if there was not a de facto taking, respondents' Delay in implementing the urban renewal plan and petitioners' consequent injuries amounted to a constitutional taking under 76 Crown Street Corp. v. City of New York, 35 A.D.2d 1005, 317 N.Y.S.2d 978, and in Matter of Charles v. Diamond, 47 A.D.2d 426, 366 N.Y.S.2d 921. This reliance is misplaced. Crown specifically contemplated an eventual de jure taking, not indicated from the proof in this...