Second Department Holds De Facto Taking Claim Untimely

Claimant acquired a vacant and unimproved lot on Staten Island in 1985 that is precluded from being developed due to being designated as freshwater wetlands or wetlands adjacent area. In 2010, the City of New York acquired the property by eminent domain as part of its South Richmond Bluebelt, Phase 3 project, and Claimant brought a claim for damages resulting from the taking. Claimant argued the date of the taking was 2005, as the City de facto took the property by constructing a headwall and installing stormwater control devices, but that Claimant did not become aware of the construction until 2011. The Supreme Court, Richmond County, granted Condemnor's motion to strike Claimant's appraisal report and preclude the claimant from offering any testimony concerning the contents of the report at trial, as damages from the 2005 taking were barred by the statute of limitations.  Claimant appeals.

The Appellate Division, Second Department first noted that a de facto taking claim is governed by the three-year statute of limitations applicable to claims to recover damages for injury to property in CPLR § 214(4). As the record established that the headwall and overflow outlet were readily visible in 2005, the Court held that the Supreme Court properly determined Claimant's time to bring any claim for damages for the alleged de facto taking expired in 2008. Moreover, contrary to Claimant's contention, the Court held that the continuous wrong doctrine was not applicable to its de facto taking claim. Accordingly, the decision to grant the City's motion to strike the claimant's appraisal report and preclude it from offering any testimony concerning the report's contents on that ground was affirmed.

The case was In the Matter of South Richmond Bluebelt, Phase 3, 141 A.D.3d 672 (2d Dep’t 2016).

Powered by 123ContactForm | Report abuse