54 N.Y.2d 353, O'Brien v. City of Syracuse

Citation:54 N.Y.2d 353, 445 N.Y.S.2d 687
Party Name:O'Brien v. City of Syracuse
Case Date:November 19, 1981
Court:New York Court of Appeals

Page 353

54 N.Y.2d 353

445 N.Y.S.2d 687

Howard J. O'BRIEN, Jr., as Executor of Howard J. O'Brien, Deceased, et al., Appellants,


CITY OF SYRACUSE et al., Respondents.

New York Court of Appeals

November 19, 1981.

Michael P. Oot, Syracuse, for appellant.

David M. Garber, Corp. Counsel, Syracuse (James L. Gelormini, Asst. Corp. Counsel, Syracuse, of counsel), for respondents. [445 N.Y.S.2d 688] OPINION OF THE COURT

COOKE, Chief Judge.

A property owner who unsuccessfully asserts against a governmental entity a claim for de facto appropriation may not later bring another action for trespass in an attempt to recover damages for the same acts as those on which the first lawsuit was grounded. The order of the Appellate Division, 79 A.D.2d 874, 434 N.Y.S.2d 547, should be affirmed.

Plaintiffs owned property in an area of Syracuse subject to urban rehabilitation. In 1973, plaintiffs commenced an article 78 proceeding against the same parties as are defendants in the present litigation. In this earlier suit, plaintiffs alleged that defendants had committed a number of acts that so seriously interfered with plaintiffs' property rights as to amount to a de facto appropriation by the city. In a nonjury trial, the 1973 suit was dismissed for failure to establish a de facto taking. The Appellate Division, Fourth Department, affirmed (Matter of O'Brien v. City of Syra 54 A.D.2d 186, 388 N.Y.S.2d 866, mot. for lv. to app. den. 40 N.Y.2d 809, 392 N.Y.S.2d 1027, 360 N.E.2d 1109, app. dsmd. 41 N.Y.2d 1008, 395 N.Y.S.2d 1028, 363 N.E.2d 1195, cert. den. 434 U.S. 807, 98 S.Ct. 37, 54 L.Ed.2d 65).

In March, 1978, plaintiffs filed a new complaint, essentially restating the allegations of their previous petition, but with the added averment that the city had taken the property by tax deed on June 1, 1977. Defendants moved to dismiss the complaint on the ground of res judicata, which motion was granted with leave to amend. Plaintiffs then filed an amended complaint reiterating the original complaint's allegations and adding general statements that defendants "wrongfully, unlawfully and willfully" trespassed upon the property at various times during the period 1967 to 1978, and that the property was damaged during these numerous intrusions. Defendants again moved to dismiss on the grounds of res judicata, Statute of Limitations, and failure to serve timely a notice of claim.


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