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Municipal Housing Authority of City of Schenectady v. Levine

Supreme Court of New York, Appellate Division

May 19, 1954

In the Matter of MUNICIPAL HOUSING AUTHORITY OF THE CITY OF SCHENECTADY, Appellant, Relative to Acquiring Title to Lands Situated in the City of Schenectady. ROSE LEVINE et al., Respondents, et al., Defendants.

Page 163

APPEALS from the following orders of the County Court of Schenectady County (LIDDLE, J.), made in a condemnation proceeding: (1) order entered December 19, 1952, confirming report of commissioners of appraisal, (2) order entered January 3, 1953, denying motion of appellant to resettle said order, and (3) order entered February 16, 1953, denying motion of appellant for permission to abandon and discontinue the condemnation proceeding.

COUNSEL

Christian X. Kouray for appellant.

Alexander Grasso for Mary Gallo, respondent.

H. W. Sevits and Bernard Ellenbogen for Rose Levine, respondent.

OPINION

COON, J.

This is a condemnation proceeding. Only two properties are involved on this appeal, one parcel owned by respondent Rose Levine and another owned by respondent Mary Gallo. We will take up the third appeal first, because in view of the conclusion we have reached on that appeal, the others become academic.

As a part of a slum clearance program plaintiff-appellant has acquired by purchase all of the property in a certain area designated for clearance except the two parcels here involved. In March, 1952, condemnation proceedings were started to acquire these two parcels, and commissioners of appraisal were appointed on March 25, 1952. The commissioners fixed the value of the Rose Levine property at $9,300, and the value of the Mary Gallo property at $12,800. Confirmation was opposed by appellant, but the report was confirmed. Appellant then made a timely motion, pursuant to section 18 of the Condemnation Law, for permission to abandon and discontinue the proceeding. Upon this motion the court had before it the petition of appellant seeking authority to abandon the proceeding, an affidavit of Mary Gallo consenting to the abandonment, and nothing else. However, counsel for Rose Levine orally objected to the abandonment. Counsel for Mary Gallo, with authority, stated orally upon the argument of this appeal and in his brief, that his client still consents to the abandonment, and would like to live in her property involved 'for the rest of her life.'

Appellant has not taken possession of the property or in any way disturbed the occupancy and enjoyment of the property

Page 164

by the owners. In fact, it could not take possession of the property until the payment of the compensation awarded, which has not been made. (Condemnation Law, ยง 15.)

Section 18 of the Condemnation Law provides, in substance, that the court may, in its discretion and for good cause, authorize the abandonment and discontinuance of a proceeding upon the payment of fees and expenses and on such other terms and conditions as the court may prescribe. In other words, it provides for adequate protection of the rights of the property owner and in effect provides for placing the owner in status quo as though the proceeding had never been commenced. Here it does not appear that the owners have taken any action in reliance upon the proceeding, or suffered any damage other than the expenses of the proceeding.

The area involved here was not to be acquired for the purpose of erecting a new housing project, but only to eliminate the existing buildings. The purpose was then for the appellant to sell the land to private owners, presumably for industrial use. It appears that appellant has determined, in conjunction with the New York State Division of Housing, that it would not be feasible to pay the amounts awarded for these two properties, and that to do so would curtail the slum clearance activities planned in other areas. It is said that the awards are approximately three times the amounts anticipated, and with the limited funds at its disposal, if appellant is compelled to pay these awards it will seriously hamper and curtail its planned purposes rather than to aid them. The Authority is charged with the responsibility for its program, and ...


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