In re S. Richmond Bluebelt, Phase 3

• Decision Date: 20 July 2016
• Citation: 35 N.Y.S.3d 628,141 A.D.3d 672,2016 N.Y. Slip Op. 05577
• Parties: In the Matter of SOUTH RICHMOND BLUEBELT, PHASE 3. 594 Associates, Inc., appellant. City of New York, respondent.
• Court: New York Supreme Court — Appellate Term

141 A.D.3d 672
35 N.Y.S.3d 628
2016 N.Y. Slip Op. 05577

In the Matter of SOUTH RICHMOND BLUEBELT, PHASE 3.

594 Associates, Inc., appellant.

City of New York, respondent.

Supreme Court, Appellate Term, New York, Second Department.

July 20, 2016.

35 N.Y.S.3d 629

Goldstein, Rikon, Rikon & Houghton, P.C., New York, N.Y. (Michael Rikon of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Michael Chestnov and Rochelle Cohen of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.

141 A.D.3d 672

In a condemnation proceeding, the claimant appeals (1) from an order of the Supreme Court, Richmond County (Saitta, J.), dated April 21, 2015, which granted the condemnor's motion to

141 A.D.3d 673

strike the claimant's appraisal report and preclude the claimant from offering any testimony concerning the contents of the report at trial, and (2), as limited by its brief, from so much of an order of the same court dated September 22, 2015, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated April 21, 2015, is dismissed, as that order was superseded by the order dated September 22, 2015, made upon reargument; and it is further,

ORDERED that the order dated September 22, 2015, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The claimant, 594 Associates, Inc., acquired the subject property, a vacant and unimproved lot on Staten Island, in 1985. The entire lot is designated freshwater wetlands or wetlands adjacent area, and is subject to regulations precluding its development. In October 2010, the City of New York, as part of its South Richmond Bluebelt, Phase 3, project, acquired the property from the claimant by eminent domain. Thereafter, the claimant filed a claim for damages resulting from the taking.

The parties exchanged appraisal reports in advance of the trial to determine the just compensation due the claimant for the taking. The claimant's appraiser valued the property as of September 26, 2005, on the theory that the City had de facto appropriated the property as of that date by constructing certain stormwater control devices that affected the property. Specifically, the City constructed a headwall on the property's border with an adjacent street, which contained an outlet for one of the storm drains located in the street, as well as an overflow outlet on the property's corner. Those devices caused stormwater to accumulate on the property during storms. The claimant claimed that it was unaware of the construction until January

35 N.Y.S.3d 630

2011, when its land use expert walked through the property and discovered it, because the headwall and overflow outlet were not visible from the street.

The City moved to strike the claimant's appraisal report and preclude the claimant from offering any testimony concerning the contents of the report. The City argued that the report had no probative value because any claim the claimant might have had for damages for the alleged September 26, 2005, taking...