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UNITED STATES v. 14.54 ACRES

November 16, 1984

UNITED STATES OF AMERICA, Plaintiff, against 14.54 ACRES OF LAND, MORE OR LESS, SITUATED IN THE TOWN OF WASHINGTON, COUNTY OF DUTCHESS, STATE OF NEW YORK, LEONARD J. MASSELLO, THE FEDERAL LAND BANK OF SPRINGFIELD, HUDSON VALLEY PRODUCTION CREDIT ASSOCIATION, THE STATE OF NEW YORK AND UNKNOWN OTHERS, Defendants.


The opinion of the court was delivered by: TENNEY

TENNEY, J.

This case is a condemnation action involving land located in the Town of Washington, Dutchess County, New York. *fn1" In addition to seeking compensation for the value of the land taken, the defendant landowner, Leonard J. Massello, claims that the Government is liable for (1) rent for the use and occupancy of the land from July 1, 1977, after the lease expired, to June 16, 1978, when the Government filed its declaration of taking, and (2) damages arising from the Government's failure to restore the land to its original condition upon expiration of the lease.

 The Government now moves for partial summary judgment dismissing the defendant's claims for rent, and for damages for the cost of restoring the land. For the reasons stated below, the motion for partial summary judgment is granted. *fn2"

 Background

 Prior to the condemnation, the Government leased the land at issue under a ten-year lease that expired on June 30, 1977. During the term of the lease, the Government erected a VORTAC facility on the property. A VORTAC facility is a structure used for guiding aircraft. When the lease expired, the Government was unable to reach an agreement with the defendant concerning new leasing terms and therefore exercised its power of eminent domain. Although the Government remained in possession of the land after the lease expired in June 1977, it did not file its declaration of taking until June 16, 1978. An Order for Delivery of Possession, filed by this Court on September 26, 1978, provided that the condemnation was effective as of July 1, 1977, the date after the lease expired.

 Discussion

 Fed. R. Civ. P. 56(c) provides that a motion for summary judgment may be granted only if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See generally 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice P56.15[1.0] (2d ed. 1983). The party moving for summary judgment must show that there are no material facts in dispute. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir. 1980). Summary judgment, however, will not be denied merely because of conclusory allegations or denials made by the opposing party; supporting facts or arguments must be set forth. See SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978).

 A. Rent

 The defendant argues that because the Government did not vacate the property when the lease expired on June 30, 1977, the Government was a holdover tenant and therefore owes rent from July 1, 1977 to June 16, 1978 when a declaration of taking was filed. In opposition to the Government's motion for partial summary judgment on this issue, the defendant argues that "at least one factual issue [exists, which is] the effective date of the "taking." This is the only issue identified by the defendant as a factual question requiring trial.

 Under United States v. Dow, 357 U.S. 17, 2 L. Ed. 2d 1109, 78 S. Ct. 1039 (1958), however, the effective date of taking is a question of law, not fact. In Dow, the Supreme Court held that the Government may exercise its power of eminent domain by taking physical possession of the designated property, without first obtaining a court order. Thus, if the Government seizes a tract of land prior to filing a declaration of taking, the date of the actual physical possession constitutes the date of the taking. Id. at 21.

 In the case at bar, it is undisputed that the Government retained physical possession of the property after the lease expired on June 30, 1977 and continued to use the land after that date. Thus, no genuine issue of fact exists and the question of the Government's liability for rent is ripe for summary judgment.

 Because the date of physical possession fixes the date of taking, the property in this case was seized as of July 1, 1977, when the lease expired. See United States v. Herrero, 416 F.2d 945, 946 (9th Cir. 1969), cert. denied, 397 U.S. 973, 25 L. Ed. 2d 267, 90 S. Ct. 1090 (1970) (holding that even though the Government did not file a declaration of taking until three years after the lease expired, the Government's continued possession of the land constituted a taking by seizure under United States V. Dow). Because the taking occurred as of July 1, 1977, the defendant's claim for rent subsequent to that date must fail as a matter of law. The Government's motion for summary judgment on this question is therefore granted.

 B. Cost of Restoring the Property

 The defendant also seeks payment for the costs that would have been incurred in restoring the property to its original condition if the Government had vacated the premises. The Government has moved for summary judgment ...


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