Building owner denied compensation from City

Buildings vacated apartment building’s occupants before MTA started construction work nearby on the Second Avenue subway line. The Metropolitan Transportation Authority, before performing certain construction work on the Second Avenue subway line, contacted Buildings regarding the building located at 1766 Second Avenue. MTA was concerned that drilling, excavation, and/or blasting for the new subway line could cause the already-leaning building to become unstable. Buildings declared the building “unsafe and an imminent peril,” and later issued an emergency declaration stating that the building needed to be stabilized by bracing and shoring.

Three weeks after the emergency declaration, Buildings issued a peremptory vacate order and allegedly vacated the building of occupants, locked it, and erected scaffolding around it. The property owner brought various claims against the City and MTA, one of which alleged that its property was taken, without payment of fair consideration, in order to facilitate subway construction. The City moved to be dismissed from the case.

Justice Michael D. Stallman granted the City’s motion, ruling that Buildings had acted within its power by guarding against the possibility of the building’s collapse from excavation and blasting operations. The court explained that compensation was not required if the government’s action was necessary to prevent an impending danger stemming from the use or condition of a property. The court added that it would not review Buildings’ determination, as the owner did not file an article 78 petition.

1766-68 Associates, LP v. City of New York, Index No. 118222/09 (N.Y. Cty. Sup. Ct. Sept. 28, 2010) (Stallman, J.) (Attorneys: Bruce H. Lederman, for owner; Michael A. Cardozo, William Vidal, for NYC).

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