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Opponents claimed City missed three-year time period to initiate eminent domain proceedings. In June 2009, the City authorized the taking of ten parcels of land near East 125th Street by eminent domain. The takings were part of an urban renewal plan in an area known for African-American art, entertainment, and history. Some of the affected properties included a thirty-year-old auto business, a not-for-profit center, a BP service station and a billboard stanchion. The parcels were located between East 126th Street to the north, East 125th Street to the south, Second Avenue to the east, and Third Avenue to the west.Owners who opposed the taking sued in July 2009 to annul the City’s decision to take the properties. The City prevailed in the litigation which continued until February 17, 2011 when the Court of Appeals dismissed an appeal by the owners from a decision in the City’s favor by the Appellate Division.

On February 12, 2014, the City filed the required eminent domain petition under the State Eminent Domain Procedure Law. Several landowners opposed the City’s petition. They asserted that the City had missed the three-year limitation period in which to file its eminent domain petition. The landowners argued that the three-year period commenced on October 12, 2010, when the Appellate Division dismissed their lawsuit challenging the City’s determination to take the property, not on February 12, 2011, when the Court of Appeals dismissed their appeal. The Supreme Court ruled in favor of the City and the owners appealed.

The Appellate Division First Department rejected the owners’ argument and ruled in favor of the City. The Appellate Division ruled that the Eminent Domain Procedure Law specified that the City had “up to three years” to commence the taking proceeding following the final judgment on judicial review of the determination to condemn property. In this case the final judgment occurred when the Court of Appeals dismissed the owners’ appeal. Accordingly, the City’s petition fell within the three-year period.

In re City of New York v. 2305­–07 Third Ave., LLC et. al., Heron Real Estate Corp., Intervener, 35 N.Y.S.3d 69 (1st Dep’t 2016) (Attorneys: J. David MacCartney, Jr., for 2305-07 Third Ave. LLC; Zachary W. Carter, Michael Chestnov, for City).

By: Kelly Padden (Kelly is a student writer for CityLaw, Executive Editor of the New York Law School Law Review and student at New York Law School, Class of 2017).