Fisher v. City of Syracuse

• Decision Date: 12 December 1974
• Docket Number: Nos. 1,2,s. 1
• Citation: 46 A.D.2d 216,361 N.Y.S.2d 773
• Parties: Donald M. FISHER et al., Appellants, v. CITY OF SYRACUSE and Syracuse Urban Renewal Agency, Respondents. Sidney BLUMAN, Individually and as Executor of the Last Will and Testament of Isabel Hurwitz, Deceased, Appellant, v. CITY OF SYRACUSE and Syracuse Urban Renewal Agency, Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 773

361 N.Y.S.2d 773

46 A.D.2d 216

Donald M. FISHER et al., Appellants, v. CITY OF SYRACUSE and Syracuse Urban Renewal Agency, Respondents.

Sidney BLUMAN, Individually and as Executor of the Last Will and Testament of Isabel Hurwitz, Deceased, Appellant, v. CITY OF SYRACUSE and Syracuse Urban Renewal Agency, Respondents.

Appeal Nos. 1, 2.

Supreme Court, Appellate Division, Fourth Department.

Dec. 12, 1974.

Raphael, Searles, Vischi & Sackman, Albany (Julius L. Sackman, Albany, of counsel), for appellants.

Harold T. Limpert, Syracuse (Lewis B. Helfstein, Syracuse, of counsel), for respondents.

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

PER CURIAM:

Appellants seek damages for the diminution in value of their properties and for the increased expense of maintaining them which they allege result from the acts of the City of Syracuse.

The properties are located within an area approved for urban renewal as a part of the City's General Neighborhood Renewal Plan. They were subsequently designated for acquisition by the Common Council. Although the plan was adopted more than 10 years ago, the properties have not been taken and it is claimed that substantial damage has resulted during the interim from this threat of condemnation. Special Term held that in the absence of a 'taking' the appellants were not entitled to damages from the City and dismissed the complaints for failure to state a cause of action (Fisher v. City of Syracuse, 78 Misc.2d 124, 355 N.Y.S.2d 239). We affirm that decision (see Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240; City of Buffalo v. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895; and cf. opinion at the Appellate Division, 34 A.D.2d 24, 311 N.Y.S.2d 98). Furthermore, without an actual or De facto taking of the property the appellants are not entitled to be compensated for damages under the due process and equal protection clauses of the State and Federal Constitutions (see Sayre v. City of Cleveland, 6 Cir., 493 F.2d 64). The judgments should be affirmed.

Judgments affirmed without costs.

MOULE, J.P., and CARDAMONE, SIMONS and MAHONEY, JJ., concur.

GOLDMAN, J., concurs in the following Opinion.

GOLDMAN, Justice (concurring):

I concur in affirmance but feel constrained to point out a substantial wrong which has been visited upon appellants. The facts are not in dispute.

The properties owned by both plaintiffs are situated within a 101 block area within the City of Syracuse designated as the Syracuse Hill Neighborhood Development Program and there are over 1,600 individual parcels of land within the area. In 1962 the Syracuse Urban Renewal Agency, a Department of the City, commenced a comprehensive urban renewal study and made renewal plans for the area in question. The Common Council of the City approved an ordinance authorizing an application by the City to the federal government for a planning grant for the urban renewal project. On September 12, 1966 the Common Council approved an initial partial acquisition of properties. On October 14, 1966 the City submitted a plan of acquisition for a portion of the renewal area, which plan included the property of appellant Bluman but did not include the property of appellants Fisher. Although the City has acquired title to many of the properties in the area, no proceeding has been commenced to condemn appellants' properties and no compensation has been paid to them.

Special Term found that:

'It is undisputed that for more than ten years the above events and activities associated therewith were the subject of wide and frequent publicity in the news media in the City of Syracuse and were the subject of frequent correspondence and conferences between the parties in both of the above captioned actions.' (Fisher v. City of Syracuse, 78 Misc.2d 124, 126, 355 N.Y.S.2d 239, 241.)

In furtherance of the plan many buildings were demolished and others were boarded up in the immediate area where appellants' properties are located. Appellants brought these actions to recover damage for the diminution in property values because of the 'condemnation blight' and also for the increased expense of maintaining the properties during this long period of activity by the City. Although there was no 'taking', appellants contend that the refusal to grant them 'just compensation' is a denial of due process and equal protection guaranteed by the Constitutions of the United States and the State of New York.

Special Term recognized the damages suffered by appellants and stated that the decision it must make was 'harsh' in its effect on these property owners. Special Term felt bound, as we do, by Article I, section 7(a) of the State Constitution which specifically limits 'just compensation' to property 'taken'. Our highest State court has clearly recognized this limitation in several decisions and particularly in City of Buffalo v. Clement Co., 28 N.Y.2d 241, 257, 321 N.Y.S.2d 345, 358, 269 N.E.2d 895, 904. No good purpose can be served by citation of the numerous Supreme Court decisions...