Second Avenue Subway And Judicial Takings

We read with interest the MTA’s press release that the construction of one part of the Second Avenue Subway, which ends at 63rd Street, is scheduled to be completed in 2016. Of course, that is only the latest in a series of pronouncements setting a timetable for completion, the earliest being for 2012, acknowledged in the press release itself. That is not good news for the retail tenants in that part of Second Avenue affected by the ongoing construction, which has been described as a retail dead zone because of the subway construction. According to Crain’s New York Business of June 21-27, 2010, “since construction began three years ago, nearly 18 businesses have shuttered, ranging from wine shops and diners to drugstores and kitchenware shops.”

We have been asked from time to time what remedies there are, if any. Our response has been that we believe, they should have redress but believe it may very well take the Court of Appeals to say so, as standing in the way is the Court of Appeals’ decision in Culver Contracting Corp. v. Humphrey, 268 N.Y. 26 (1935).