Challenge by hotel and commercial owner rejected by court. In the summer of 2006, the MTA initiated the condemnation needed for the first phase of the Second Avenue Subway, the construction from East 63rd to East 96th Street. After holding a hearing and issuing final findings, the MTA requested a court to finalize its condemnation plan by allowing it to file a final map and authorize vesting.

Condemnees The Marmara Manhattan, an East 94th Street hotel, and MacArthur Properties, a landlord of several commercial businesses, challenged the MTA’s request, claiming the petition was invalid since MTA failed to include the City as a necessary party. MacArthur alleged that the City denied sidewalk cafe permits to its Second Avenue tenants due to the MTA’s condemnation plan. This made the City a necessary party and entitled MacArthur to due compensation. Marmara claimed MTA’s hearing was inadequate.

Justice Walter B. Tolub denied both condemnees claims, explaining that the parties could only raise procedural challenges to MTA’s request to file a final map. Challenges to the hearing needed to be raised within 30 days of MTA’s final published findings, which Marmara missed even though it participated in the hearing. Justice Tolub advised MacArthur that if it had a claim against the City due to the denied sidewalk cafe permits, it should file a separate claim.

In re Metropolitan Transportation Authority, N.Y.L.J., Feb. 26, 2007 at 22 (N.Y.Cty.Sup.Ct. Feb. 14, 2007) (Tolub, J.).