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Archive | 2018

August 20, 2018

TIME TO PROVIDE FOR A JURY TRIAL FOR CONDEMNATION CLAIMS

New York’s Eminent Domain Procedure Law (EDPL) provides that the Supreme Court shall have exclusive jurisdiction to determine all claims from the acquisition of real property and hear such claims without a jury or without referral to a referee or commissioners.  EDPL § 501(B).  If the property is acquired by the State, the claim will be litigated in the Court of Claims.  EDPL § 501(A).  All claims in the Court of Claims are tried by a Court of Claims Judge without a jury.  In United States v 243.22 Acres of… read more

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Posted in Jury Trial, Just Compensation
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August 17, 2018

SANDBAGGING, A PRACTICE THAT MUST STOP

My column for the August 28, 2018 issue of the New York Law Journal, “The New York State Legislature Should Revise the EDPL” contains many suggestions for revisions of the law.  One suggested change addresses the practice employed by condemning authorities commonly known as “sandbagging.” Eminent Domain Procedure Law § 304 addresses the concept of advance payment.  As the statute states, the condemnee may elect to accept such offer as an advance payment and such election shall in no way prejudice the right of a condemnee to claim additional compensation. … read more

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Posted in Advance Payments, Appraisal, Sandbagging
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August 16, 2018

STANDING TO FILE A TAX CERTIORARI PETITION – AN EVERCHANGING DEFINITION

On May 10, 2018, we blogged about a tax certiorari decision handed down by the Appellate Division, Second Department, Matter of Larchmont Pancake House v Board of Assessors, 153 AD2d 521 (Aug. 2, 2017).  The decision caused great concern to the bar because it held that while a tenant who is responsible for the payment of real estate taxes is an aggrieved party within the meaning of the RPTL because the assessments had a direct adverse affect on its pecuniary interests.  The tenant may not proceed because RPLT articles require… read more

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Posted in Aggrieved Person, Standing, Tax Certiorari
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August 8, 2018

MAN WANTS HIS PROPERTY BACK – TOO LATE!

A news story run by CBS News on August 6, 2018 reports that a former owner of land in the Bronx is fighting to get the land back from the City of New York.  The property, a 13,000 square foot parcel on Boston Road, was taken in 1967 apparently for a street widening. He has commenced a lawsuit because nothing was done with the property.  His attorney is hopeful that the City will work something out.  I am less sanguine of the results.  Under New York State Eminent Domain Procedure… read more

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Posted in Abandonment Of Condemnation, EDPL Sec. 406, Partial Takings, Right of First Refusal
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August 6, 2018

THE REBUTTABLE PRESUMPTION OF VALIDITY OF VALUATION MEANS THAT TAX VALUATION CAN BE CHALLENGED

Tax Certiorari cases are difficult enough but, should not be impossible.  The Fourth Department recently decided a case, Buscaglia v Assessor, Town of Hamburg, 2018 N.Y. App. Div. Lexis 4854 [4th Dept 2018], where it reversed an Order of Supreme Court, Erie County, which dismissed petitions to reduce assessed taxes. The property involved a waterfront parcel on Lake Erie.  The parties stipulated to the admission in evidence of their respective appraisal reports.  The Court agreed with the assessor that petitioner failed to overcome the legal presumption that respondents’ assessment was… read more

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Posted in Appraisal Evidence, Rebuttable Presumption, Substantial Evidence
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