627 Smith St. Corp. v. Bureau of Waste Disposal of the Department of Sanitation of the City of New York

Decision Date24 December 2001
Citation289 A.D.2d 472,735 N.Y.S.2d 555
Parties627 SMITH ST. CORP. et al., Respondents,<BR>v.<BR>BUREAU OF WASTE DISPOSAL OF THE DEPARTMENT OF SANITATION OF THE CITY OF NEW YORK, Appellant, et al., Defendant.
CourtNew York Supreme Court — Appellate Division

H. Miller, J. P., Townes, Crane and Cozier, JJ., concur.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The plaintiffs own interests in premises known as 627 Smith Street in Brooklyn. The premises adjoins and fronts on the Gowanus Canal, a navigable waterway. Across the canal, the appellant owns and operates a sanitation waste disposal plant known as the Hamilton Avenue Marine Transfer Station (hereinafter the Transfer Station). In the operation of that facility, the appellant places waste and refuse on barges which are then towed by tugboat out of the canal to other locations for final disposal. In 1988, the plaintiffs commenced the instant action, alleging that because of the operation of the barges and tugboats, a bulkhead and associated structures fronting their portion of the Canal were destroyed. Subsequently, the plaintiffs amended their complaint to assert claims of de facto appropriation or inverse condemnation of their riparian rights.

The Supreme Court properly determined that the appellant engaged in a de facto appropriation or inverse condemnation of the plaintiffs' riparian rights. A finding of de facto appropriation or inverse condemnation, "is based on showing that the government has intruded onto the * * * property and interfered with the owner's property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner" (O'Brien v City of Syracuse, 54 NY2d 353, 357). Among a landowner's riparian rights is the right of access to a navigable river or body of water which the land abuts, including a right to erect and maintain wharves and piers with the right of passage to and from them with reasonable safety and convenience (see, Hinkley v State of New York, 234 NY 309, 317-318; Saunders v New York Cent. & Hudson Riv. R. R. Co., 144 NY 75, 87; Town of Hempstead v Oceanside Yacht Harbor, 38 AD2d 263, affd 32 NY2d 859). Such rights cannot be taken or damaged for the public use without just compensation (see, City of New York v Wilson & Co., 278 NY 86, 102-103). Here, the evidence at trial established that in the operation of the Transfer Station, tugboats would tow two barges in tandem into the canal such that the barges would either strike the plaintiffs' bulkhead, or come so close as to prevent the plaintiffs from providing a vessel safe berth along their portion of the canal. Such maneuvering of the appellant's barges would occur several times per day, six days per week. Furthermore, there was evidence indicating that the plaintiffs attempted to repair the bulkhead along their portion of the canal only to have such repairs thwarted by the...

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10 cases
  • In re Metro. Transp. Auth.
    • United States
    • New York Supreme Court — Appellate Division
    • 16 Enero 2013
    ...208;Chemical Corp. v. Town of E. Hampton, 298 A.D.2d 419, 420, 748 N.Y.S.2d 606;627 Smith St. Corp. v. Bureau of Waste Disposal of Dept. of Sanitation of City of N.Y., 289 A.D.2d 472, 473, 735 N.Y.S.2d 555). “The measure of damages must reflect the fair market value of the property in its h......
  • Vill. of Port Chester v. Bologna
    • United States
    • New York Supreme Court — Appellate Division
    • 1 Mayo 2012
    ...113; Matter of Village of Port Chester, 43 A.D.3d 943, 944, 843 N.Y.S.2d 337; 627 Smith St. Corp. v. Bureau of Waste Disposal of Dept. of Sanitation of City of N.Y., 289 A.D.2d 472, 474, 735 N.Y.S.2d 555; Matter of Town of Islip v. Mustamed Assoc., 222 A.D.2d 682, 636 N.Y.S.2d 84; Matter of......
  • In re Auth.
    • United States
    • New York Supreme Court — Appellate Division
    • 21 Julio 2011
    ...choice of comparable sales, which is entitled to deference, was proper ( see 627 Smith St. Corp. v. Bureau of Waste Disposal of Dept. of Sanitation of City of N.Y., 289 A.D.2d 472, 473–474, 735 N.Y.S.2d 555 [2001], appeal dismissed, lv. denied 98 N.Y.2d 611, 749 N.Y.S.2d 3, 778 N.E.2d 554 [......
  • In re Queens W. Dev. Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • 11 Mayo 2016
    ...see Chemical Corp. v. Town of E. Hampton, 298 A.D.2d at 423, 748 N.Y.S.2d 606 ; 627 Smith St. Corp. v. Bureau of Waste Disposal of Dept. of Sanitation of City of N.Y., 289 A.D.2d 472, 473–474, 735 N.Y.S.2d 555 ). Here, the Supreme Court properly determined that the City established that hig......
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