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MATTER CITY NEW YORK (10/17/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1969.NY.43095 <http://www.versuslaw.com>; 304 N.Y.S.2d 552; 60 Misc. 2d 1062 October 17, 1969 IN THE MATTER OF THE CITY OF NEW YORK, RELATIVE TO ACQUIRING REAL PROPERTY REQUIRED FOR THE WIDENING OF FLATBUSH AVENUE AND AVENUE U, AND ADDITIONAL LANDS IN CONNECTION THEREWITH, IN THE BOROUGH OF BROOKLYN. (DAMAGE PCLS. NOS. 7A, 8A, 10A, 11A, 13, 13A, 15, 15A, 16, 16A.) J. Lee Rankin, Corporation Counsel (Carl Schiffer and Simon Meisler of counsel), for City of New York. Frederick Siegmund, Nathan L. Goldstein and Joseph Z. Goldstein for Edward Circus, as trustee, claimant. Charles A. Hirsch for Isidore Margel and others, claimants. James S. Brown, J. Author: Brown


James S. Brown, J.

Author: Brown

 After a hearing on the question of service, held on September 26, 1969, the court found that timely notice of this condemnation proceeding had been mailed to the owners of the above parcels and by oral decision denied items a and b of four identical motions. These items sought to open movants' default and to vacate the order of condemnation signed on June 5, 1969.

Accordingly, only item c of said motions remains undecided. This item seeks an order dismissing said application to condemn insofar as it applies to certain additional lands referred to therein.

The basis advanced for the relief sought is the claim that the notice mailed is defective, as to any additional lands, because it does not state, as required by section 382 of the New York City Charter, the purpose for which said additional lands are being condemned and violates the due process provisions of the Fourteenth Amendment to the Constitution of the United States because said notice does not state that the land is to be taken for a public use. It is also claimed that subdivision (e) of section 1 of article IX of the New York State Constitution, which authorizes local governments to acquire private property by eminent domain proceedings, is null and void because it is vague and uncertain and provides no standard for implementation.

The answering affidavit of respondent states that the application and order entered herein comply with subdivision (e) of section 1 of article IX of the New York State Constitution which gives local governments the power to use eminent domain proceedings to acquire property and with sections C15-1.0 and C15-3.0 of the New York City Administrative Code.

Subdivision (e) of section 1 of article IX of the New York State Constitution reads: "Local governments shall have power to take by eminent domain private property within their boundaries for public use together with excess land or property but no more than is sufficient to provide for appropriate disposition or use of land or property which abuts on that necessary for such public use, and to sell or lease that not devoted to such use. The legislature may authorize and regulate the exercise of the power of eminent domain and excess condemnation by a local government outside its boundaries."

The New York City Administrative Code (ยง C15-1.0) gives the following definition: "2. 'Excess lands', or 'additional lands', or 'additional real property': The real property in addition to the real property needed or required for laying out, widening, extending or relocating a park, public place, highway or street."

Section C15-3.0 of said code states: "Power to condemn excess lands. -- The city, in acquiring real property for any improvement, may acquire more real property than is needed for the actual construction of the improvement. The mayor may authorize the city to acquire additional real property in connection with any improvement, and direct that the same be acquired with the real property to be acquired for the improvement. Such additional real property, however, shall be not more than sufficient to form suitable building sites abutting on the improvement. The title which the city shall acquire to additional real property shall in every case be a fee simple absolute. Additional real property shall be acquired by the city in connection with a street improvement only when the title acquired for the improvement shall be in fee. When the mayor shall have authorized the acquisition of title to additional real property in connection with an improvement, title to such additional real property shall be acquired by the city in the manner and according to the procedure, except in such respects as in this title set forth, provided for the acquisition of title to the real property required for the improvement and in the same proceeding in which title to the real property required for the improvement shall be acquired."

Section 382 of the Charter of the City of New York requires that notice by mail of a condemnation proceeding be given to the owner of the property to be taken and reads as follows: "Notice to owners of proceeding to acquire property. -- In addition to all other requirements of law, written notice of the application to have compensation for real property ascertained in any proceeding brought by the city to acquire title to real property shall be given by the corporation counsel to the owners of all property affected by the proceeding at least ten days prior to such application, by mailing the same to such owners at the address registered or filed with the finance administrator for the purpose of forwarding to them bills for taxes, assessments and frontage water rates. Such notice shall state the purpose for which the property is to be acquired and the date when such application will be presented and shall contain a copy of such application. Upon request by the corporation counsel the Finance Administrator shall furnish a certified list of the registered or filed names and addresses of such owners. Failure to comply with the directions contained in this section shall not invalidate or affect the proceeding." (Emphasis added.)

A copy of the notice of application to condemn which was mailed to the owners is attached to the answering affidavit. The notice states that the City of New York intends to acquire title to certain real property required for the widening of Flatbush Avenue and Utica Avenue, "and title, in fee simple, to additional lands in connection therewith." The notice contains no further reference to any purpose for which the additional lands are to be acquired.

The land which the city proposes to take in excess of that actually to be occupied by the widened street includes the following:

(a) A triangular area of some 12,900 square feet consisting of damage parcels designated on the acquisition and damage map as 2A, 3A, 4A, 5A, 6A, 7A and 8A. This area has frontages of 96 feet on Avenue S, 134 feet on East 51st Street and 165 feet on Flatbush Avenue.

(b) An irregular area of some 18,000 square feet consisting of Damage Parcels 10A, 11A and 12A, which has a frontage of approximately 340 feet on Flatbush Avenue, a depth of 140 feet where Damage Parcel 10A touches East 51st Street and a depth of approximately 40 feet where Damage Parcel 12A touches East 52nd Street.

(c) An irregular area of some 18,200 square feet consisting of Damage Parcels 13A, 14A and 15A. Damage Parcels 14A and 15A have a frontage of 300 feet on Flatbush Avenue between Avenue T and East 53rd Street and a depth of 40 feet. Damage Parcel 13A is roughly triangular, with one side of 100 feet, one ...


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