Kohlasch v. New York State Thruway Authority

• Decision Date: 17 October 1978
• Docket Number: No. 76 Civ. 4395.,76 Civ. 4395.
• Citation: 460 F. Supp. 956
• Parties: Frank W. KOHLASCH as Executor of the Last Will and Testament of Frank H. Kohlasch, Deceased and Echo Bay Boat Yard, Inc., Plaintiffs, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant. NEW YORK STATE THRUWAY AUTHORITY, Third-Party Plaintiff, v. CITY OF NEW ROCHELLE, Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

460 F. Supp. 956

Frank W. KOHLASCH as Executor of the Last Will and Testament of Frank H. Kohlasch, Deceased and Echo Bay Boat Yard, Inc., Plaintiffs, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant.

NEW YORK STATE THRUWAY AUTHORITY, Third-Party Plaintiff, v. CITY OF NEW ROCHELLE, Third-Party Defendant.

No. 76 Civ. 4395.

United States District Court, S. D. New York

October 17, 1978.

COPYRIGHT MATERIAL OMITTED

August C. Nimphius, Jr., White Plains, N. Y., for plaintiffs.

Dickerson, Reilly & Mullen, New York City, for defendant New York State Thruway Authority; John H. Reilly, Jr., John W. Burke, New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

Plaintiffs, owner and lessee respectively of real property in the City of New Rochelle, seek damages from the defendant New York State Thruway Authority ("Authority") for injuries resulting from the discharge onto plaintiffs' property of oil, sand, debris and chemicals from a drain constructed by the defendant on adjacent lands. In addition to damages, plaintiffs seek permanent injunctive relief against a continuation of such conduct.

Plaintiffs allege various causes of action:¹

(1) The defendant's conduct constitutes a taking of property without due process and just compensation. Jurisdiction is claimed under the federal question provision of 28 U.S.C., section 1331, and the civil rights provision of 28 U.S.C., section 1343(3).

(2) The navigable channel across plaintiffs' property has become shoal and obstructed, thereby impairing their navigational rights. Admiralty jurisdiction under 28 U.S.C., section 1333, is alleged.

(3) A bulkhead on plaintiffs' land is being undermined and destroyed as a result of the force of the discharge from the Authority's drain. Although no specific jurisdictional base is alleged, plaintiffs rely generally on the pendent jurisdiction of the Court, in addition to the specific provisions noted above.

(4) The adjacent waters of the Long Island Sound, the waters of the channel across plaintiffs' land, and the soil beneath the channel are being polluted and fouled by the materials discharged from the drain.

(5) The Authority, although required to obtain a permit from the New York State Department of Environmental Conservation for the construction and maintenance of sewers, drains and the like that discharge into navigable waterways, has maliciously and intentionally refused to do so.²

The Authority moves pursuant to Rules 12(h)(2) and (3) of the Federal Rules of Civil Procedure to dismiss each and every cause of action on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

I

Defendant's jurisdictional objection to plaintiffs' claim of an unconstitutional taking rests on the Eleventh Amendment bar to suits against the State. Under state law, exclusive jurisdiction of claims against the Thruway Authority lies in the New York Court of Claims;³ since the state courts, other than the Court of Claims, would have no jurisdiction in this action, defendant contends that the federal courts "by analogy" also lack jurisdiction. But whether or not the Authority is an alter ego of the State for Eleventh Amendment purposes is a question of federal not state law.⁴ Thus defendant's citation of Zeidner v. Wulforst,⁵ to support the proposition that the Authority is immune from suit, is misplaced. Unlike the instant action, Zeidner was a diversity suit; the doctrine of Erie R. Co. v. Tompkins⁶ required the court to accord the Authority the same limited immunity from suit it would receive under state law. Erie, not the Eleventh Amendment, compelled dismissal in Zeidner; in fact, the Zeidner court specifically held that the Authority was not an alter ego of the State and thus the Eleventh Amendment was no bar.⁷

We agree with the court in Zeidner that the Thruway Authority is not cloaked with sovereign immunity. The Authority has the power to sue and be sued, to hold and dispose of property, and to borrow money and issue negotiable notes and bonds.⁸ Particularly significant is the fact that the Authority, not the State, is liable on all awards and judgments arising from claims for the value of real property taken for thruway purposes.⁹ There being no immunity, defendant's motion to dismiss for lack of subject matter jurisdiction is denied.

Defendant's contention that plaintiffs have failed to state a claim is more persuasive. To support a claim of a taking in violation of the Fourteenth Amendment, plaintiffs must show three elements: (1) a property interest, (2) that has been taken under color of state law, (3) without due process or just compensation. For the purposes of this motion, plaintiffs' allegations of ownership of the described property and of physical intrusion and resultant damage must be deemed true.¹⁰ But the gravamen of the constitutional violation is the State's failure to provide due process and just compensation and, on this element, plaintiffs' complaint founders. They admittedly have made no attempt to avail themselves of the adequate state procedures for compensation following a de facto appropriation.¹¹

Our Court of Appeals has recently suggested that the bypassing of an adequate state remedy renders the complaint subject to dismissal for failure to state a constitutional violation:

It has been suggested in a somewhat analogous context by then Circuit Judge Stevens that if such a remedy does exist and has not been resorted to, no constitutional deprivation can be claimed. See Bonner v. Coughlin, 517 F.2d 1311, 1319-20 (7th Cir. 1975). Although a subsequently convened en banc court in that case rejected this approach in the context of the prisoner's suit before it, 545 F.2d 565 (7th Cir. 1976) (en banc), this theory would seem to apply with greater force to the more traditional type of "taking" of property by the State that is alleged here.¹²

This position is supported by Supreme Court decisions which have held that the Constitution does not require a hearing or compensation in advance of appropriation, but only that "adequate provision for obtaining compensation" exist prior to the seizure.¹³ For example, in cases of physical seizure of property by the federal government without the institution of condemnation proceedings, the Tucker Act¹⁴ has been held to constitute the "adequate provision" required by the Fifth Amendment.¹⁵

Similarly, New York law contains "adequate provision" for compensation for the taking alleged in this case. "Although the condemning authority is generally not liable to a condemnee until title to the property is officially taken," New York recognizes that a compensable de facto taking may be established by evidence of "physical entry by the condemnor, a physical ouster of the owner, a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner's power of disposition of the property."¹⁶ Claims similar to those pressed by plaintiffs have long been recognized by the New York courts. For example, the New York Court of Claims has held that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other materials . . . so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the Constitution for which compensation must be made."¹⁷

Plaintiffs can sue the Thruway Authority in the New York Court of Claims where they would be entitled to "the fair market value of the property actually taken, and also any damages resulting to the residue."¹⁸ Such a judgment would of necessity take into account the damages to date and any future damages by reason of the continuation of the alleged wrongful conduct. Plaintiffs, however, assert that the state procedures are inadequate because the Court of Claims lacks equitable powers. But the equitable relief requested of this Court is an injunction directing the Authority to remove the drain or commence condemnation proceedings. The additional effort required of plaintiffs to commence the Court of Claims proceeding for compensation themselves is of no constitutional moment.¹⁹ No further assertions of inadequacy of the state remedy having been made, plaintiffs' claim must fail.

II

Defendant, relying on Executive Jet Aviation v. City of Cleveland,²⁰ contends that plaintiffs have improperly invoked admiralty jurisdiction over their claim of impaired navigational rights. Under Executive Jet, admiralty jurisdiction exists in cases of maritime torts if the wrong "occurs" or is "located" on or over navigable waters and if the "wrong bear a significant relationship to traditional maritime activity."²¹ Plaintiffs' allegations meet this description. The complaint states that plaintiffs "have rights to navigate vessels in a dredged area over and across part of the lands" described; "the tide ebbs and floods" in the dredged area which connects "directly with the waters of Long Island Sound"; and the discharge from the Authority's drain is causing the waters "to become shoal and obstructed and unfit for navigation."

Defendant counters with two arguments: first, that this case involves injury to riparian rights, not maritime interests; second, that this Court should look to the defendant's activity, rather than the plaintiffs' injury, in determining whether a maritime connection exists. Similar contentions were raised in Sound Marine & Machine Corp. v. Westchester County²² and rejected by the Second Circuit, which held that a suit by a riparian owner to recover damages for impaired ingress and egress in a navigable channel owing to the defendant's construction of a sewer pipe in the channel was cognizable in admiralty. Although the right to use the waterway stemmed from ownership of riparian property, the Court found that the character of the right was essentially maritime.²³ There, as here, plaintiffs used their property for the repair and storage of boats. In addition, the Court...