De facto taking claim fails

Willis Avenue Bridge. Image Credit: Google Maps.

Construction work on the Willis Avenue Bridge caused flooding on adjacent property. In March 2007, the City acquired by condemnation property adjacent to the property owned by 82 Willis, LLC. The condemnation was in connection with the City’s reconstruction of the Willis Avenue Bridge over the Harlem River.

Willis LLC brought an eminent domain valuation proceeding seeking compensation for flooding during the City’s bridge work. Willis LLC alleged that its property and its access easement became flooded after rainfall due to a blocked drainage pipe in the access easement area. The pipe had been blocked by concrete during construction of the bridge.

The City moved to strike the claim on the ground that the flooding damage did not result from the taking of Willis LLC’s property and was not compensable in an eminent domain condemnation valuation proceeding. The flooding claim should have been asserted in a separate tort proceeding to recover construction damages. The Supreme Court, Bronx’s County, denied the City’s motion as premature. The City appealed.

The Appellate Division, First Department, reversed the Supreme Court, upheld the City’s position and ruled that Willis LLC could not, in an eminent domain valuation proceeding, pursue a claim to recover compensation or consequential damages resulting from the flooding. The Appellate Division also rejected Willis LLC’s claim for a de facto taking or inverse condemnation because the City had not permanently occupied the property. The interference with Willis LLC’s property rights was not sufficiently permanent to establish a de facto taking.

82 Willis, LLC v. City of New York, 177 A.D.3d 453 (1st Dep’t 2019).

By: Lauren Hatz (Lauren is a New York Law School graduate, Class of 2022.)


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