82 Willis, LLC v. The City of New York

In the Matter of Acquiring Fee Title, etc. Willis Avenue Bridge Replacement, etc. The following papers numbered as indicated below were read on these motions (NYSCEF Seq. No. 16, 17) noticed on _______and duly submitted as No. on the Motion Calendar of ____________ Motions NYSCEF Sequence No. 16,17 OSC, Opposition, Reply   As indicated in NYSCEF DECISION and ORDER upon the foregoing papers, the motions listed above are decided in accordance with the annexed Decision and Order. In Motion Sequence No. 16, by Order to Show Cause, the condemnor City of New York (hereinafter, “condemnor” or “City”) moves for an Order precluding the Claimant 82 Willis, LLC (hereinafter, “”Claimant” or “82 Willis”) from offering testimony at trial as to consequential damages relating to the relocation of the Willis Avenue Bridge and its effect on the real property located at 82 Willis Avenue (“Subject Premises”); precluding consequential damages stemming from an alleged “temporary construction easement”; and precluding any proof as to matters beyond the scope of the exchanged appraisals. In Motion Sequence No. 17, by Order to Show Cause, Claimant moves for an Order precluding the City from offering evidence (a) contrary to the Claimant’s contention that the City’s Permanent Easement blocked Claimant’s access over the Access Easement, which was necessary for Claimant to access the Subject Premises as of the vesting of title on March 27, 2007 (the “Vesting Date”); (b) disputing that the City did not provide Claimant access to the Subject Premises as part of the Vesting Map; (c) to establish that one of the City’s contractors, rather than the City’s Permanent Easement, caused the loss of access to the Subject Premises; (d) disputing that Claimant’s damages were fixed at the vesting date; (e) that Claimant failed to obtain substitute access after the Vesting Date or that the City could mitigate its damages after the Vesting Date; and (f) precluding the City from introducing its purported appraisal report or offering expert witness testimony as to this purported report or, in the alternative precluding the City from introducing affirmative evidence disputing the amount Claimant’s damages. Facts and Procedural History “Claimant” is the owner of Lot 180, Tax Block 2260, located in Bronx County. Lot 180 is a 29,401 square foot parcel of vacant land, situated adjacent to the Willis Avenue Bridge, which crosses the Harlem River between the boroughs of Manhattan and the Bronx. The Lot is an elongated, rectangular-shaped parcel, with its “long” side adjacent to a highway, and its “short” side nearly under the access ramp to the Willis Avenue Bridge. Lot 180 is wholly located within a larger parcel designated as Lot 62, and thus lacks direct street access. The parcel’s only means of access is through a non-exclusive easement (sometimes referred to herein as the “Access Easement”), used in conjunction with other entities, which is essentially located under the Willis Avenue Bridge access ramp.¹ In connection with a City project to replace the Willis Avenue Bridge, on March 27, 2007 (“Vesting Date”), pursuant to the Eminent Domain Procedure Law (“EDPL”), the City acquired various fee and easement interests for the Willis Avenue Bridge Replacement. One of the easements acquired was a permanent “aerial, repair, maintenance, and access easement” over the northern portion of Lot 62 to allow for the construction, maintenance, and repair of the new Willis Avenue Bridge (“City’s 2007 Bridge Easement”). The City’s 2007 Bridge Easement did not extend into Lot 180, but it did include almost the whole area which constituted Lot 180′s access easement. As further illustrated in the aerial photograph (cached at [insert unique cache URL supplied by LRB]), the City’s 2007 Bridge Easement (depicted in light blue) over Lot 62 effectively incorporated Lot 180′s access easement, save for an insignificant portion which in itself would not permit access or egress. As already indicated, the City’s 2007 Bridge Easement over Lot 62 did not include any taking of any property interest in Lot 180 itself. In connection with the Willis Avenue Bridge replacement project and the acquisition of the City’s 2007 Bridge Easement, the City also acquired various temporary construction and staging easements. These temporary easements were all located on the southernmost portion of Lot 62. No temporary easements were acquired in the northern portion of Lot 62, and specifically, no temporary easements were acquired over Lot 180′s Non-Exclusive Access and Maintenance Easement. Claimant served a verified notice of claim pursuant to EDPL 503 on April 14, 2008, which stated that “[t]his claim is for appropriation of an easement over property of the Claimant 82 WILLIS, LLC (“Claimant”) pursuant to the Eminent Domain Procedure Law.” The notice of claim further stated, “The condemnor acquired the easement interest over an easement benefiting [Lot 180] on March 27, 2007.”) The claim, which was never amended, did not expressly include any allegation that the City had precluded access or that a de facto condemnation had occurred. From May 2009 through April 30, 2011, Claimant leased Lot 180 to Kiewit Constructors, Inc / Kiewit-Weeks Marine (“Kiewit”), a non-party which was the City’s contractor on the Willis Avenue Bridge replacement project. Under the lease, Kiewit paid $7,350 a month for the first year and $7,625 a month for the second year. In 2011, Claimant sued Kiewit for non-payment in the Civil Court of the City of New York (County of Bronx, Index No. L&T 900794-2011) alleging rent due for the period January 2010 to May 2011, seeking an amount over $80,000. The matter was settled in 2011 for $30,225.² Claimant later developed Lot 180 into a parking lot. Starting December 8, 2014, when the bridge construction ended, Claimant leased Lot 180 to non-party Flat Rate Movers, Ltd. for $186,000 for the first year of the lease, with an annual increase of $500/month. At the present, Lot 180 remains a parking lot. As recounted on a prior appeal in this action, the Claimant alleged for the first time in 2015 that for a 31-month period, the City’s contractors had blocked a drainage pipe in Lot 180′s non-exclusive easement area, causing flooding which prevented access after rainfall. (Matter of Willis Ave. Bridge Replacement, 177 A.D.3d 453, 454, 111 N.Y.S.3d 595, 597, 2019 N.Y. App. Div. LEXIS 8149, *2 [1st Dept. 2019]). Further, “subsequent to the discovery of the flooding, Claimant leased out its property and received rental income. Claimant’s alleged flooding damages, as set forth in the appraisal, consist of reduced rental income and the inability to develop residential towers on the property.” (Id.) On the City’s motion to dismiss, the Appellate Division reasoned that because Lot 180 was not subject to a de jure taking by the City, Claimant could not recover just compensation or consequential damages resulting from the flooding. In addition, as to de facto taking or inverse condemnation, that claim also failed as a matter of law, as “the interference with Claimant’s property rights, as set forth in its own appraisal report, is not sufficiently permanent to constitute a de facto taking as a matter of law…” (Matter of Willis Ave. Bridge Replacement, supra at 456.) The Appellate Division specifically noted that it did not need to consider if the de facto taking claim was timely. A note of issue was filed in this action on September 30, 2020. The parties mutually agreed to submit the present motions in limine to define, limit and clarify the issues to be tried in this action. Present Arguments City of New York The City contends that 82 Willis, based on the submitted appraisals, is advancing two impermissible theories of recovery. The first inadmissible theory, the City argues, is based on an alleged loss of the ability to develop the property by erecting residential towers. Specifically, Claimant contends that the new bridge is approximately 80 feet³ closer to Lot 180. Claimant maintains that it has lost buildable area if it attempts to build and maintain the same distance that previously existed from Lot 180 to the bridge. The City argues that this theory of recovery fails as 82 Willis’s deed does not contain any easement for light and air. Absent an easement for light and air, the City was free to build anywhere it desired in proximity to the plaintiff’s property. The City next challenges Claimant’s second theory of recovery, which is that from March 27, 2007 (the date of vesting) until the beginning of 2015, the access easement was blocked by a locked gate, preventing access to the property. The City argues that this alleged de facto taking is not compensable because a de facto taking requires a permanent occupation of the Claimant’s property. Instead, assuming that during a seven-year period Lot 180 was used for construction siting, and was blocked by a fence, this amounts only to a temporary trespass. Further, the City argues that any claim of inverse condemnation is barred by a three-year statute of limitations under CPLR 214(4). In this regard, the City contends, the Verified Claim that Claimant filed in 2008 was limited to the City’s 2007 Bridge Easement, which was acquired on March 27, 2007, and did not set forth any claims relating to a de facto taking. 82 Willis Claimant contends that the City’s 2007 Bridge Easement effectuated a complete taking of Lot 180′s access easement and resulted in the Subject Premises becoming landlocked, for which the City is required to pay Claimant just compensation. Soon after construction began in 2007, Claimant contends that the Subject Premises and the Access Easement area became work areas which completely blocked access to the Subject Premises and the Access Easement area from Willis Avenue. Claimant argues that this Court has already determined in an April 6, 2010, Order (Order, Howard R. Silver, J.⁴ that the Permanent Easement was an “unlimited taking” and that the taking included a taking of the Access Easement. It is undisputed, Claimant maintains, that the Vesting Map did not provide Claimant with access to the Subject Premises as part of the Vesting Map, and thus the City should be precluded from arguing and introducing evidence that Claimant had access to the Subject Premises over the Permanent Easement. The City’s taking, Claimant argues, caused the Subject Premises to be landlocked. In order to have avoided such a result, at the time of the taking, the City was required to provide Claimant with substitute legal access. Claimant further argues that while that the City will attempt to argue that it was one of its contractors who prevented Claimant from accessing the Subject Premises, the City should be precluded from introducing such evidence at trial. Because the Permanent Easement was unlimited in nature, “the Permanent Easement itself acted as a taking of the Access Easement. As a result of this taking, Claimant was prevented from accessing the Subject Premises.” Claimant also argues that the construction of the Bridge in the Permanent Easement area caused direct and severance damages to the Subject Premises at 82 Willis and Claimant is entitled to damage based upon the highest and best use of the Subject Premises at vesting. Lastly, Claimant argues that the City should be precluded from introducing its appraisal report or offering expert witness testimony as to this report since the report fails to comply with 22 NYCRR 202.59-202.61. At a minimum, Claimant argues, the City should be precluded from introducing affirmative evidence as to the amount of Claimant’s damages as it failed to provide an admissible non-rebuttal expert witness report as to the City’s theory of damages to the Subject Premises as required by 22 NYCRR 202.59-202.61. Discussion Claims relating to the alleged “closure” of Lot 82 Claimant’s initial contention is that the City’s permanent easement effectively constituted a taking of the Lot 180 by rendering it “landlocked.”⁵ This court is not making any factual finding that the City’s contractors did or did not erect fencing, as claimed, or otherwise so severely impede access that the Claimant was effectively denied access to its property. There is evidence on either side of the issue. The following discussion assumes without deciding that the Claimant might be able to establish these claims at trial. The problem with Claimant’s contention is that the Claimant never interposed any claim for a de facto taking of property or a de facto temporary easement.⁶ Any such claim would now be untimely. Moreover, even if a claim for a de facto taking would be timely, no claim for a de fact taking could arise based on the Claimant’s alleged facts, as any “taking” was temporary. “A de facto appropriation differs from a trespass by the extent of its egregiousness and permanence” (Sassone v Town of Queensbury, 157 AD2d 891, 893, 550 NYS2d 161 [3d Dept. 1990] [citation omitted]). In this very action the Appellate Division has already held that a temporary taking gives rise to a trespass, not an inverse condemnation. (Matter of Willis Ave. Bridge Replacement, supra at 456.)⁷ Perhaps realizing that a de facto taking claim is either untimely or inapt, the Claimant denies that its theory is based on a de facto taking. Instead, Claimant argues that it has a valid claim based on the de jure taking itself. According to the Claimant, the City’s vesting order, in asserting an easement over that part of Lot 62 over which the Claimant also had an easement, effectuated an ouster of the Claimant. In arguing that the City’s 2007 Bridge Easement barred Claimant from using its Access Easement, the Claimant does not cite to any part of the Vesting Order which effectuates an exclusive easement over the areas where Claimant also enjoys an easement. Nor does the Court discern any language in the Vesting Order which excluded the Claimant from the continued use of its access easement. Rather than relying on any language in the vesting easement which excludes the Claimant, the Claimant argues that this Court has already determined in Justice Silver’s April 6, 2010 Order that the Permanent Easement effectuated an “unlimited taking.” Claimant therefore concludes that under the doctrine of collateral estoppel, the Court is bound to find that the City excluded the Claimant from the use of the access easement. easement was sought, no right was acquired by which Claimant was excluded from the use of its access easement, and no claim was timely raised for a temporary exclusion as a de facto taking or de facto easement. Collateral estoppel applies when “(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits” (Conason v. Megan Holding, LLC, 25 NY3d 1 [2015] [internal quotation marks and citation omitted], rearg denied 25 NY3d 1193 [2015]). Contrary to the Claimant’s argument, Justice Silver never actually decided that the City barred the Claimant from access to its property. Nor is any such finding implicit from his opinion. Instead, Justice Silver specifically found that whether or not the Claimant had been excluded from the property presented a factual issue, as Justice Silver opined that “no factual admissible evidence or proof has been submitted by the City to support its claim that there was not a complete loss of access.” Had Justice Silver found that the de jure taking effectuated an ouster by taking a permanent exclusive easement, he would have had no need to consider whether factually such an ouster had occurred. Just compensation for property taken in a condemnation proceeding is determined by the property’s market value at the time of the taking, ordinarily the date that title vests in the condemnor (see Matter of City of New York [Salvation Army], 43 NY2d 512, 518, 373 NE2d 984, 402 NYS2d 804 [1978].) The present claims do not arise from the vesting, but from subsequent conduct in the nature of a trespass or obstruction of the Claimant’s non-exclusive easement. Nor does the assertion that the City’s de jure taking effectuated a permanent exclusive easement accord with common sense. The Claimant is now actively seeking to pursue the development of its property by erecting residential towers. Its only means of access is the very same easement which furnished the only means of access to its property. Any development or use of the property would be permanently barred if the City had taken a permanent exclusive easement under which access to the Claimant would be subject to the City’s discretion. This is clearly not the case. Moreover, as the City did not exclude the Claimant from using its access easement, the City was not obligated, as Claimant argues, to provide a separate means of access to the subject property. For the foregoing reasons, the Court agrees with the City’s arguments that the Claimant may not pursue any claims in this action for alleged denial of access to its property during the bridge reconstruction, as the alleged exclusion did not arise from the vesting itself. “Generally, events occurring between the time of the taking and the time of trial of the compensation claim may not be considered in determining the compensation award.” (51 NY Jur Eminent Domain §176). The events occurring after the vesting of the City’s non-exclusive easement sound in trespass or a separate de facto taking, which claims are not interposed and would be untimely if the Claimant sough to interpose them at this point in time. Consequential damages affecting the value of building on Claimant’s property Claimant’s second theory of damages is that because the location of the new Bridge is closer to its property, it is no longer able to construct the same size buildings on the Subject Premises, as indicated in Claimant’s Engineering Report dated January 7, 2015. Claimant does not dispute that New York does not recognize an easement for light and air except when created by express agreement (Chatsworth Realty 344 LLC v Hudson Waterfront Co. A, LLC, 309 AD2d 567, 568 [1st Dep't 2003]), and Claimant specifically denies that it is basing its claim on an alleged easement of light and air. Instead, Claimant argues that prior to the relocation of the Bridge, the Claimant planned to develop the Subject Premises utilizing an eighty-eight (88) foot setback from the bridge so as to provide the proposed buildings “with an adequate light and air environment.” Claimant now argues that if it utilizes the same 88-foot setback based upon the new position of the new bridge, it will be unable to develop a 10-story residential complex, and the Floor Plan Area Ratio would be reduced by approximately one-third. As the City argues,⁸ while Claimant’s appraisal states that Claimant can no longer maintain the same setback (88 feet) because the new bridge is closer to Claimant’s property, nowhere does the Claimant or its experts argue or demonstrate that such an 88-foot setback is required. The City flatly states, and it is not demonstrated otherwise, that there is no building or zoning regulation or other mandate necessitating an 88-foot setback. Without establishing a necessity to maintain an 88-foot setback, Claimant’s theory of damages fails. The 88-foot distance from the proposed development to the bridge facia is a preference and not a required building setback. Indeed, the record contains a February 2023 request to the Board of Standards and Appeals by the Claimant indicating that the Claimant seeks to build between 30′-60′ feet from the bridge facia (“February 2023 Plan”). In short, the Claimant has not shown that it can assert consequential damages based on the proximity of the bridge to its property, as it is still able to develop the property to the full extent it could have before the taking of the new easement. The Court finds the remaining arguments to be without merit. It is therefore, ORDERED that the City’ motion is granted, and the motion of 82 WILLIS, LLC is denied, and it is further ORDERED that the Complainant 82 WILLIS, LLC is precluded from arguing at trial from offering any evidence or eliciting any testimony regarding (1) its first theory seeking consequential damages to Bronx Block 2260 Lot 180 stemming from the City’s relocation of the Willis Ave Bridge; (2) its second theory seeking consequential damages to Bronx Block 2260 Lot 180 stemming from a “temporary construction easement” running from March 27, 2007 to September 19, 2014; and (3) any affirmative proof of value to matters outside its exchanged appraisals. This is the Decision and Order of the Court. 1. CHECK ONE CASE DISPOSED IN ITS ENTIRETY X   CASE STILL ACTIVE 2. MOTION IS GRANTED DENIED GRANTED IN PART OTHER 3. CHECK IF APPROPRIATE SETTLE ORDER SUBMIT ORDER Dated: October 10, 2023