"The board of education may purchase real property for any of the purposes authorized by law and shall take title thereof in the name of the City which shall hold said property in trust for the use of such school district and the City is hereby empowered to sell and convey the same when it deems it for the interest of such school district . . ."
There is no question that the land was acquired by the City "for use as a site for the erection of a school" as reflected in the June 12, 1956 Ordinance. Nor is there any question that the land was so used during the intervening years. We believe it is of no consequence that the abutting playground, an amenity of the school itself, is alleged to have been maintained by the Department of Parks. In fact, and in practice, the site was devoted to the Whitman School under the aegis of the YBOE.
It follows from this analysis that at no time after the June 12, 1956 Ordinance did the plaintiffs have any enforceable rights by virtue of the restrictive covenant since the land in question was excluded from the covenant.
The language in the covenant is a description of the land which is to be exempted, i.e., the land to be used by the YBOE. Cf. Board of Educ. v. Long, 52 N.Y.S.2d 323, 268 A.D. 1053, (App. Div. 1945); Board of Educ. v. French, 166 N.Y.S.2d 181, 8 Misc. 2d 208 (Sup. Ct., Special Term, Nassau Cty 1957). We hold that the fact that the mechanism by which, under New York State Education Law § 2557, a school board acquires title, i.e., through acquisition in the name of the City, does not defeat the obvious intent of the transferror, nor erase the long history of the premises.
Although, as noted, plaintiffs explicitly disclaim reliance on any theory of a reversionary right, we deem it appropriate to express the view that this concession is well founded. There is clearly no language of reverter in the deed and no such rights were conferred on plaintiffs or their predecessors in title. Since we find that plaintiffs lacked any such reversionary rights, we need not address whether they would give rise to any claims for monetary damages under the circumstances of this case. Cf. Crane Neck Assoc. v. New York City/Long Island County Serv. Group, 61 N.Y.2d 154, 460 N.E.2d 1336, 472 N.Y.S.2d 901 (N.Y.), cert. denied, 469 U.S. 804, 105 S. Ct. 60, 83 L. Ed. 2d 11 (1984) (injunctive relief denied on grounds of public policy).
Our conclusion that the Whitman site was not subject to the restrictive covenant since June 12, 1956 is dispositive of all other issues in these two cases.
Plaintiffs assert that they have suffered a taking of their property for which they are entitled to compensation. In this regard, they ascribe fault to the City for failing to propose an alternative site in lieu of the Whitman site and for failing to initiate condemnation proceedings. Obviously, the underlying premise for these claims is the existence of some property right in the plaintiffs which has somehow been taken when the land in question was utilized for public housing. Since we find that no such property rights existed at any time subsequent to June 12, 1956, all of plaintiffs' contentions must fail.
Plaintiffs had no property interest arising by virtue of the restrictive covenant once the Whitman site was acquired by the City of Yonkers pursuant to the June 12, 1956 Ordinance which enabled the construction of the Whitman School operated by the YBOE. Title was acquired in the manner prescribed by New York state law for School Board land acquisitions. No material questions of fact are in dispute.
Defendants' motion for summary judgment is granted.
Dated: New York, N. Y.
May 18, 1992
Leonard B. Sand